/raid1/www/Hosts/bankrupt/CAR_Public/180719.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, July 19, 2018, Vol. 20, No. 144
Headlines
AEGEAN MARINE: Aug. 6 Lead Plaintiff Bid Deadline
ALLEGHENY COUNTY, PA: Jail Captain Sues for Unpaid Wages
ALLERGAN INC: Suit Mulled Over Implants Linked to Rare Cancer
ALLTRAN FINANCIAL: Faces "Frankel" Suit in E.D. New York
AMERICAN AIRLINES: Faces "Zamber" Suit in E.D. Virginia
AMERICAN SOLAR: Court Denies Summary Judgment in "O'Shea" Suit
AMP: Judge Fears Tying Federal Ct.'s Hands in Class Action Battle
BOB'S DISCOUNT: Can't Compel Arbitration in "Espinal" Suit
BRIGHT HOUSE: Court Won't Certify Interlocutory Appeal in "Sliwa"
CATHERINE ROSELLI: Faces "Gabbai" Suit in S.D. Florida
CBJ CREDIT: Faces "Brink" Suit in W.D. New York
CERNER CORP: Agrees to OT Settlement But Wants Deal Kept Secret
CONWAY, AK: Police, Fireman Pay Suit Set for May 2019 Trial
COOK COUNTY, IL: Judge Junks Proposed Bail Bond Practices Suit
COVANCE INC: Court Denies Bid to Strike Class Claims in "Sealock"
DALE CARNEGIE: Faces "Matzura" Suit in S.D. New York
DEUTSCHE BANK: Aug. 6 Lead Plaintiff Bid Deadline
DMNO LLC: Court Narrows Claims in Former Servers' FLSA Suit
DOUGLAS L MEYER: Bissett Nursery Suit Brought Before NY Sup. Ct.
EARTH INC: Faces "Crosson" Suit in E.D. New York
ENCORE RECEIVABLE: Court Dismisses "Reynolds" FDCPA Suit
EXACTIS: Data Breach Sparks Class Action Lawsuit
EXCLUSIVE SUV: Faces "Fischler" Suit in E.D. New York
EXPRESS SCRIPTS: Court Dismisses SAC in Securities Suit
FACEBOOK INC: Partial Ban-Lift Invites Suit by Crypto Community
FANNIE MAE: Court Narrows Claims in "Banneck" Suit
FBCS INC: Faces "Joseph" Suit in M.D. Florida
FORD MOTORS: Class Suit Trial Date Vacated for Procedural Failure
FOREMOST INSURANCE: Oct. 5 "Braden" Class Deal Fairness Hearing
FRANK SMYTHSON: Faces "Duncan" Suit in S.D. New York
FSC BARBER: Faces "Bishop" Suit in S.D. New York
GENTING NEW YORK: Faces "Duncan" Suit in S.D. New York
GIVENCHY CORP: Faces "Duncan" Suit in S.D. New York
GLORIA JEANS: Faces "Matzura" Suit in S.D. New York
GOGO INC: Bronstein Gewirtz Files Securities Fraud Class Suit
GOGO INC: Levi & Korsinsky Files Securities Fraud Class Suit
GOGO INC: Vincent Wong Files Securities Fraud Class Suit
HARDEE'S: Faces Class Action Lawsuit After Hepatitis A Outbreak
HIGHPOINT SOLUTIONS: Data Breach Case "No Harm, No Foul"
HORMEL FOODS: Pork Producers Face Price-Fixing Suit
INTUIT INC: Court Enters Summary Judgment in "Myers" Labor Suit
KAWASAKI MOTORS: Faces "Duncan" Suit in S.D. New York
LABOR READY: Final Approval of "Allen" Settlement Affirmed
LE CREUSET: Faces "Kiler" Suit in E.D. New York
LIVE NATION: Court Compels Arbitration in "Himber" Suit
M SHANKEN: Faces "Sullivan" Suit in S.D. New York
MCA FINANCIAL: Faces "Garcia" Suit in D. Arizona
MICROSOFT CORP: Judge Throws Out Class Action Petition in Lawsuit
MIDLAND CREDIT: Court Dismisses "Torres" FDCPA Suit
MRS BPO: Faces "Paracha" Suit in E.D. New York
MLB ADVANCED: Faces "Duncan" Suit in S.D. New York
MURRAY GOULBURN: IMF Bentham Class Action Funding Unconditional
NATIONSTAR MORTGAGE: 9th Cir. Affirms "Vanamann" Summary Judgment
NEBRASKA: State High Ct. Renders "Nesbitt" Dismissal Appeal Moot
NEW YORK COMMUNITY: Faces "Duncan" Suit in S.D. New York
NEW ZEALAND: Kiwifruit Class Action Lawsuit Succeeds
NRI USA: Loses Bid to Dismiss State Law Claims in "Garcia"
ORMAT TECHNOLOGIES: Aug. 8 Lead Plaintiff Bid Deadline
OTB ACQUISITION: Faces "Duncan" Suit in S.D. New York
P.F. CHANG'S: Court Grants Prelim OK of $6.5MM "Pearson" Deal
PACCAR INC: "Stampfli" Suit Remanded to Wis. State Court
PACIFIC COLLECTIONS: Faces "Gattoni" Suit in C.D. California
POLARITYTE INC: Aug. 27 Lead Plaintiff Bid Deadline
POLARITYTE INC: Hagens Berman Files Securities Fraud Suit
PROVIDENCE HEALTH: Affirmative Defenses in "Johnson" Partly OK'd
RECRO PHARMA: July 30 Lead Plaintiff Bid Deadline
RESTORATION ROBOTICS: Pomerantz Files Securities Fraud Suit
REV GROUP: Levi & Korsinsky Files Class Action Lawsuit
RIMOWA DISTRIBUTION: Faces "Duncan" Suit in S.D. New York
RMG SUNSET: Court Denies Remand of "Stern"
RMS RECOVERY: Faces "Brewi" Suit in E.D. New York
ROCK HILL: Faces "Gillam" Suit in E.D. Virginia
ROSS & ASSOCIATES: Faces "Seeger" Suit in E.D. New York
RUDY'S BARBERSHOP: Faces "Bishop" Suit in S.D. New York
SAMSUNG ELECTRONICS: Bid to Enforce Wash. Machine Suit Deals OK'd
SAMSUNG ELECTRONICS: Loses Bid to Dismiss Defective S3 Suit
SERVICE CORP: Court Denies Bid to Dismiss "Delacruz"
SERVICE EMPLOYEES: Faces "Lyon" Suit in Calif. Super. Ct.
SIBANYE GOLD: Faces Class Action Lawsuit Following Fatalities
SIBANYE GOLD: Bernstein Liebhard Files Class Action Lawsuit
SONGS FAMILY: Faces "Her" Suit in W.D. New York
STEVEN COHEN: Faces "Shutter" Suit in S.D. New York
TJX COMPANIES: Faces "Fuentes" Suit in S.D. Florida
TOYOTA MOTOR: Faces "Stockinger" Suit in C.D. California
TSG AUTO: Faces "Grays" Suit in Colorado
TSC ACCOUNTS: Faces "Gattoni" Suit in C.D. California
UNITED STATES: Seneca County May Join Tax Payment Suit
UNITED STATES: Faces "Morecraft" Suit in Court of Federal Claims
UNITED STATES: Class Action Suit Targets Family Separations
UNITED STATES: Lincoln Cty. Might Join PILT Class Action Lawsuit
UNITED STATES: Muskogee County Joins PILT Class-Action Lawsuit
UNUM GROUP: Aug. 13 Lead Plaintiff Bid Deadline
VITA-MIX CORP: Faces "Kiler" Suit in E.D. New York
WAH FUNG USA: Faces "Su" Suit in S.D. New York
WANDERLUST FESTIVAL: Faces "Bishop" Suit in S.D. New York
WANDERLUST FESTIVAL: Faces "Duncan" Suit in S.D. New York
WOODBOLT DISTRIBUTION: Faces "Lopez" Suit in C.D. California
Z BAR: Faces "Ramos" Suit in E.D. New York
* Washington Procurement Protocol May be Preempted by FAA
*********
AEGEAN MARINE: Aug. 6 Lead Plaintiff Bid Deadline
-------------------------------------------------
Levi & Korsinsky, LLP announces that class action lawsuits have
commenced on behalf of shareholders of the following publicly-
traded companies. Shareholders interested in serving as lead
plaintiff have until the deadlines listed to petition the court;
further details about the cases can be found at the links
provided.
Aegean Marine Petroleum Network Inc. (NYSE:ANW)
Class Period: April 28, 2016 - June 4, 2018
Lead Plaintiff Deadline: August 6, 2018
During the class period, Aegean allegedly made materially false
and/or misleading statements and/or failed to disclose that:
Aegean had improperly accounted for an approximate $200 million
of accounts receivable as of December 31, 2017; Aegean failed to
maintain effective internal control over financial reporting; and
as a result of the foregoing, Defendants' statements about
Aegean's business, operations, and prospects, were false and
misleading and/or lacked a reasonable basis.
To learn more go to: http://www.zlk.com/pslra-d/aegean-marine-
class-action?wire=3.
You have until the lead plaintiff deadlines to request the court
appoint as lead plaintiff. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
Aegean Marine Petroleum Network Inc. (NYSE:ANW)
Class Period: April 28, 2016 - June 4, 2018
Lead Plaintiff Deadline: August 6, 2018
During the class period, Aegean allegedly made materially false
and/or misleading statements and/or failed to disclose that:
Aegean had improperly accounted for an approximate $200 million
of accounts receivable as of December 31, 2017; Aegean failed to
maintain effective internal control over financial reporting; and
as a result of the foregoing, Defendants' statements about
Aegean's business, operations, and prospects, were false and
misleading and/or lacked a reasonable basis.
To learn more go to: http://www.zlk.com/pslra-d/aegean-marine-
class-action?wire=3.
You have until the lead plaintiff deadlines to request the court
appoint as lead plaintiff. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
Contact:
Joseph E. Levi, Esq.
Levi & Korsinsky, LLP
30 Broad Street - 24th Floor
New York, NY 10004
Telephone: (212) 363-7500
Toll Free: (877) 363-5972
Fax: (212) 363-7171
Email: jlevi@levikorsinsky.com [GN]
ALLEGHENY COUNTY, PA: Jail Captain Sues for Unpaid Wages
--------------------------------------------------------
Theresa Clift, writing for Trib Live, reports that an Allegheny
County Jail captain is suing the county claiming it has stopped
compensating him and other captains at the jail for overtime.
Captains are not allowed to receive overtime pay for working more
than 40 hours a week, like the jail guards they oversee do, the
lawsuit stated.
The county used to allow captains to accrue "comp time" when they
worked more than 40 hours a week so they could work a shorter
week later with full pay, but stopped that practice in 2018.
William Yates, 56, of McCandless, who filed the lawsuit in
federal court, claims he was left with 170 hours of comp time
that he was not paid for or given paid time off for, according to
the lawsuit. He was hired as a jail captain in March 2016.
Amie Downs, a spokeswoman for the county, declined comment on the
lawsuit.
Yates regularly arrives about 20 minutes before his shift starts
to prepare and sometimes must attend 30-minute meetings before
his shift but is never paid for either, the lawsuit said.
During the past three years, the jail has employed more than 30
captains, and none were paid overtime despite many worked more
than 40 hours a week, the lawsuit said.
There are currently about a dozen captains employed at the jail.
Jail captains make about $80,000.
The county does not maintain accurate records of all time worked
by jail captains, the complaint said.
The lawsuit, filed on behalf of Yates and "all similarly situated
employees," claims violations of the Fair Labor Standards Act of
1938, the Pennsylvania Minimum Wage Act and the Pennsylvania Wage
Payment and Collection Law.
It seeks to recover damages for unpaid wages.
On June 27, the case was reassigned from U.S. District Judge
David S. Cercone to U.S. District Judge Arthur J. Schwab.[GN]
ALLERGAN INC: Suit Mulled Over Implants Linked to Rare Cancer
-------------------------------------------------------------
Tineka Everaardt, writing for 9 News, reports that a group of
women diagnosed with anaplastic large-cell lymphoma after getting
common breast implants are considering a class action.
Monique Bock is one of 72 Australian women who have contracted
ALCL after being fitted with highly-textured breast implants.
These products are often used for reconstruction after cancer
treatment, meaning some sufferers have had to deal with a breast
cancer diagnosis, followed by a cancer of the immune system.
Monique told a Current Affair it had been a hellish ordeal.
"The emotional toll of not knowing what's going on, am I going to
be okay . . . we have to speak out about it," she said.
A Current Affair has revealed exclusively that Monique is in
talks with Shine Lawyers about a potential class action against
the manufacturers of these implants.
Shine Lawyers' Caryn Ger,Esq. said they were "investigating the
potential for a class action and it's hoped that we can help the
women that have been affected by these implants".
It comes off the back of Allergan, the manufacturer of textured
Biocell implants, upgrading their warranty and providing
compensation to women.[GN]
ALLTRAN FINANCIAL: Faces "Frankel" Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Alltran Financial,
LP. The case is styled as Yehuda Frankel, on behalf of himself
and all other similarly situated consumers, Plaintiff v. Alltran
Financial, LP formerly known as: United Recovery Systems, L.P.,
Defendant, Case No. 1:18-cv-03882 (E.D. N.Y., July 5, 2018).
Alltran Financial, LP specializes in revenue cycle, accounts
receivable, and contact center solutions within healthcare,
financial services, higher education, and government industries
in the Unites States.[BN]
The Plaintiff is represented by:
Maxim Maximov, Esq.
Maxim Maximov, LLP
1701 Avenue P
Brooklyn, NY 11229
Tel: (718) 395-3459
Fax: (718) 408-9570
Email: m@maximovlaw.com
AMERICAN AIRLINES: Faces "Zamber" Suit in E.D. Virginia
-------------------------------------------------------
A class action lawsuit has been filed against American Airlines,
Inc. The case is styled as Kristian Zamber, on behalf of himself
and all others similarly situated, Plaintiff v. American
Airlines, Inc., Defendant, AGA Service Company also known as:
Allianz Global Assistance ("AGA"), Movant, Case No. 3:18-mc-
00004-REP (E.D. Va., July 5, 2018).
American Airlines, Inc. is a major United States airline
headquartered in Fort Worth, Texas, within the Dallas-Fort Worth
metroplex.[BN]
The Movant is represented by:
John Buckley Warden, IV, Esq.
Durrette Crump PLC
1111 East Main Street
16th Floor
Richmond, VA 23219
Tel: (804) 916-6597
Fax: (804) 775-6911
Email: bwarden@t-mlaw.com
AMERICAN SOLAR: Court Denies Summary Judgment in "O'Shea" Suit
--------------------------------------------------------------
The United States District Court for the Southern District of
California denied Plaintiffs' Motion for Summary Judgment in the
case captioned KERRY O'SHEA, Plaintiff, v. AMERICAN SOLAR
SOLUTION, INC., Defendant, Case No. 3:14-cv-00894-L-RBB (S.D.
Cal.).
This case is a class action alleging Defendant American Solar
Solution, Inc., violated the Telephone Consumer Protection Act
(TCPA), by using an automatic telephone dialer system (ATDS) to
place telemarketing calls to cell phones.
The Plaintiff argues that it is entitled to summary judgment
because no reasonable jury could doubt the accuracy of its
expert's report. In this report, Hansen contends that he received
the Defendant's outbound dial list and imported it into a
database. Hansen then scrubbed this list against two telephone
number databases that the telecommunications industry uses to
distinguish cell phone numbers from landline numbers.
Having reviewed Hansen's Report, the Court agrees that it appears
to be methodologically sound and rather persuasive. It seems that
a reasonable jury could find the Report to be accurate. That
said, the Court cannot hold as a matter of law that a reasonable
jury could not conclude otherwise. It is feasible that, after
cross examination, a jury could find Hansen's conclusions are
flawed for any number of reasons, such as improper reliance on
these specific databases and programs or potential errors in data
entry.
Because there is a fact issue as to the accuracy of Hansen's
Report, the Court denies the Plaintiff's motion for summary
judgment.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/ya9nx7cm from Leagle.com.
Kerry O'Shea, on behalf of himself and all others similarly
situated, Plaintiff, represented by Ronald Marron --
ron@consemersadvocates.com -- Law Office of Ronald Marron, Alexis
M. Wood -- alexis@consumersadvocates.com -- Law Offices of Ronald
A. Marron & Kas L. Gallucci -- kas@consumersadvocates.com -- Law
Offices of Ronald A. Marron.
American Solar Solution, Inc., a California Corporation,
Defendant, represented by Ken Ichi Ito -- legal@greensoltech.com
-- & Margaret Juhyee Lee, Green Solar Technologies, Inc.
AMP: Judge Fears Tying Federal Ct.'s Hands in Class Action Battle
-----------------------------------------------------------------
Miklos Bolza, writing for Lawyerly, reports that a NSW Supreme
Court judge has voiced concerns in an unprecedented
jurisdictional battle that a decision that leaves competing class
actions against AMP still raging in separate courts may force the
Federal Court into a corner.
"Is it appropriate for me to make a decision to which [Federal
Court Justice John Middleton] may say, 'He gives me no choice'?"
Justice James Stevenson asked lawyers for the multiple actions,
who were crammed in court on June 28 to argue over where the
cases should be heard.
Only one of the five shareholder class actions is formally before
the NSW Supreme Court, but the law firm leading the case -- Quinn
Emanuel -- argues in an injunction application that the four
other actions should be temporarily stayed until August, when the
Federal Court hears an application by AMP to centralise all the
proceedings in the state court.
Judge Stevenson also heard arguments on June 28 over separate
applications from Maurice Blackburn and Shine Lawyers to move the
Quinn Emanuel class action to the Federal Court, the home of
their AMP cases, as well as those filed by Slater & Gordon and
Phi FInney McDonald.
The debate over multiple class actions across multiple
jurisdictions is a first of its kind in Australian litigation
history, the court heard.
And refusing both transfer applications and the injunction could
"put the weight" of a significant decision on Judge Middleton,
Judge Stevenson said.
AMP barrister Steven Finch, SC -- finch@tenthfloor.org -- told
the judge that feeling forced into action to spare the Federal
Court resulted in the same outcome.
"That's binding Your Honour's hands. It's bad in both ways,"
Finch offered.
The barrister acting for the Quinn Emanuel class action, John
Sheahan, QC -- john.sheahan@5wentworth.com -- said the choice was
easy -- the matter should be heard in the NSW Supreme Court
because Quinn Emanuel was the first to file. It was also the
"natural forum", he said, given that AMP's head office was in
NSW, as were the key actions, witnesses and documents in the
case, he said.
"What should have happened was that the applicants now in the
Federal Court, being apprised of this proceeding in this court,
should have done the same thing and made an application in this
court," he said.
"The 'you've only got yourself to blame' submission," Judge
Stevenson joked.
Barrister Cameron Moore, Esq. -- cameron.moore@banco.net.au --
representing the Maurice Blackburn class action, noted that by
the time his instructing solicitors had filed their class action,
there were already three cases in the Federal Court and only one
in the Supreme Court.
The "we brought this on ourselves" argument doesn't "properly
characterise on a factual level what is happening in these
proceedings," he said.
Robert Weber, SC -- rjweber@selbornechambers.com.au -- for the
Slater & Gordon-led class action, added his voice, saying that
when that case was filed, there was one case in each court. "We
were entitled to commence in any court that had jurisdiction," he
said.
That Quinn Emanuel's was first to be filed was nevertheless still
important, AMP's Finch chimed in, and "the importance of that is
anyone commencing action in a different court in a different
location creates their own tension," he told the judge.
Judge Stevenson reserved his judgment.
The cases are being billed as among the largest shareholder class
actions ever in Australia.
Testimony at the Banking Royal Commission revealed AMP had
charged customers fees for no service and misled the Australian
Securities & Investments Commission about the practice.
The revelations sent AMP's share price plummeting by more than 10
percent, wiping $2 billion off the company's market valuation.
The company's CEO and chairwoman resigned, as did three AMP board
members, and its group general counsel was terminated.
ASIC's investigation is ongoing.
AMP is represented by Herbert Smith Freehills.
Barrister William Edwards appeared for the Phi Finney class
action; Ian Pike, SC, appeared for the Shine Lawyers action.
The Quinn Emanuel case is Marion Antoinette Wigmans v AMP
Limited. The Phi Finney case is Wileypark Pty Ltd v AMP Limited;
the Shine Lawyers case is Andrew Georgiou v AMP Limited; the
Slater & Gordon case is Fernbrook (Aust) Investments Pty Ltd v
AMP Limited; and the Maurice Blackburn case is Komlotex
Proprietary Limited as Trustee for Breda Sinclair Industries
Superannuation Fund v AMP Limited.[GN]
BOB'S DISCOUNT: Can't Compel Arbitration in "Espinal" Suit
----------------------------------------------------------
Judge John Michael Vazquez of the U.S. District Court for the
District of New Jersey denied with prejudice the Defendants'
motions to compel arbitration and stay the case, OMAR A. ESPINAL,
on behalf of himself and all other similarly situated persons,
Plaintiff(s), v. BOB'S DISCOUNT FURNITURE, LLC, XPO LOGISTICS,
INC., JANE AND JOHN DOES, Defendants, Civil Action No. 17-2854
(JMV) (JBC) (D. N.J.).
On April 26, 2017, the Plaintiff filed the putative class action
lawsuit arising from what he alleges are violations of the New
Jersey Wage and Hour Law ("NJWHL") and the New Jersey Wage
Payment Law ("NJWPL"). He brings the suit on behalf of himself,
and all other individuals who, after April 2015, performed truck
driving and/or helper functions in New Jersey for the Defendants.
Defendant Bob's sells furniture and operates and utilizes a
distribution facility in Edison, New Jersey. The Plaintiff
claims that Bob's was his employer as defined by the NJWHL and
NJWPL.
Defendant XPO2 is a third-party provider of end-to-end goods
management and logistics services. It provides management and
logistic services to Bob's and the Bob's Facility. It also had a
physical presence at the Bob's Facility. The Plaintiff claims
that XPO was his employer as defined by the NJWHL and NJWPL.
The Plaintiff claims that he was assigned non-exempt tasks as a
driver and/or helpers for Bob's based in the Bob's Facility.
According to him, Bob's entered into relationships with other
entities, including XPO, to conceal the fact that it had an
employer-employee relationship with him. He contends that Bob's
and XPO controlled the manner and means by which he performed his
duties.
In sum, the Plaintiff claims that he was an employee of Bob's and
XPO under NJWHL and NJWPL -- not an independent contractor as
defined by N.J.S.A. 43:21-19(i)(6)(A)(B)(C), or an exempt
employee under NJWHL. He claims that he routinely worked more
than 40 hours per week and was not paid the proper overtime rate.
Currently pending before the Court are the Defendants' motions to
compel arbitration and stay litigation. The Complaint does not
reference any arbitration agreement. However, in their motions,
both XPO and Bob's provide agreements with arbitrations
provisions that each contends control. XPO points to an
agreement between SS Express Trucking, LLC and 3PD, Inc. SS
Express entered into a Delivery Services Agreement ("DSA") with
3PD on March 19, 2014. SS Express agreed to provide 3PD with
delivery services and agreed that SS Express employees and agents
would assist SS Express in performing the obligations specified
by the DSA.
Bob's and XPO entered into a Master Delivery Operation Service
Agreement ("MDOSA") on Dec. 21, 2015. The MDOSA stated that
Bob's desires to have XPO arrange for the delivery and other
services described in the MDOSA. The MDOSA includes an
arbitration clause.
Judge Vazquez finds that there are several disputes among the
parties for which the Court would normally permit discovery
pursuant to holding in Guidotti. These issues include, among
others, the Plaintiff's employment relationship with SS Express;
XPO's relationship with 3PD because 3PD was the party that
actually entered into the DSA with SS Express; and the effect of
Bob's MDOSA with XPO vis-a-vis the Plaintiff. He finds that
neither XPO nor Bob's has a contract directly with the Plaintiff
which requires arbitration. Bob's relationship with the
Plaintiff is even more tenuous, as its arbitration agreement is
with XPO rather than the Plaintiff's purported employer, SS
Express.
As a non-signatory to either the DSA or MDOSA, the Judge says the
Plaintiff could only be bound by the arbitration provisions in
limited circumstances. XPO and Bob's claim that, the Plaintiff
is subject to the agency and estoppel theories. To properly
determine whether the Plaintiff is bound as a non-signatory,
discovery is necessary. However, assuming all of the foregoing
facts (and the reasonable inferences therefrom) in favor of XPO
and Bob's, he still finds that their motions fall short. As a
result, he does not order discovery.
Turning to whether the Plaintiff's statutory and unjust
enrichment claims are within the scope of the arbitration clause
in the DSA, the Judge finds that the language at issue is broader
than that of either Garfinkel v. Morristown Obstetrics &
Gynecology Assocs., or Atalese v. U.S. Legal Servs. Grp., L.P.,
in which the arbitration provisions were limited to disputes
relating to the agreements. Yet, the DSA's arbitration provision
is not as clear or as broad as that in Martinadale, which
addressed all disputes relating to the plaintiff's employment or
termination. Because the DSA's arbitration clause is not clear
and unmistakable as to statutory rights, he will deny the
Defendants' motions to compel arbitration.
For these reasons, Judge Vazquez denied with prejudice the
Defendants' motions to compel arbitration and stay litigation.
An appropriate Order accompanies the Opinion.
A full-text copy of the Court's May 18, 2018 Opinion is available
at https://is.gd/fzkYkT from Leagle.com.
OMAR A. ESPINAL, Plaintiff, represented by RAVI SATTIRAJU --
rsattiraju@sattirajulawfirm.com -- THE SATTIRAJU LAW FIRM, P.C. &
ANTHONY SANTOS ALMEIDA, THE SATTIRAJU LAW FIRM, P.C.
BOB'S DISCOUNT FURNITURE, LLC, Defendant, represented by SEAN C.
SHEELY -- sean.sheely@hklaw.com -- HOLLAND & KNIGHT LLP & DUVOL
M. THOMPSON -- Duvol.Thompson@hklaw.com -- HOLLAND & KNIGHT LLP.
XPO LOGISTICS, INC., Defendant, represented by BRIAN SCOTT KAPLAN
-- brian.kaplan@dlapiper.com -- DLA Piper LLP.
BRIGHT HOUSE: Court Won't Certify Interlocutory Appeal in "Sliwa"
-----------------------------------------------------------------
The United States District Court for the Middle District of
Florida, Fort Myers Division, denied Defendants' Motions to
Certify an Interlocutory Appeal from a prior Opinion and Order in
the case captioned STEPHAN H. SLIWA, individually and on behalf
of all others similarly situated, Plaintiff, v. BRIGHT HOUSE
NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., Defendants, and
UNITED STATES OF AMERICA, Intervenor, Case No. 2:16-cv-235-FtM-
29MRM (M.D. Fla.).
The Plaintiff alleges that the Defendants harassed him by calling
his cellphone hundreds of times using an automatic telephone
dialing system or pre-recorded or artificial voice technology,
even after he instructed them to stop, in an attempt to recover a
consumer debt that Plaintiff owed Bright House.
On June 16, 2017, Bright House filed a Motion for Judgment on the
Pleadings arguing that it cannot be held liable for Plaintiff's
Telephone Consumer Protection Act (TCPA) claims because Section
227(b)(1)(A)(iii) -- the TCPA provision Plaintiff relies upon --
violates the First Amendment. The Court denied Bright House's
Motion for Judgment on the Pleadings on March 29, 2018, without
reaching the merits of the First Amendment issue. The Court found
that, assuming Section 227(b)(1)(A)(iii) violates the First
Amendment, the offending portion of that provision -- the
Government-Debt Exception -- would be severable, and the
remainder of the provision would still expose Bright House to
liability under the facts alleged in the Amended Complaint.
Bright House, joined by defendant Advanced Telesolutions, seeks
to certify the following issues to the Eleventh Circuit Court of
Appeals: Whether the Government-Debt Exception "triggers strict
scrutiny, and . . . fails strict scrutiny and cannot be severed."
Bright House relies on Heckler v. Mathews, 465 U.S. 728, 739 n.5
(1984), arguing that reasonable jurists could disagree about the
severability of the Government-Debt Exception because the default
remedy in constitutional litigation is for extension' of the
right abridged rather than nullification of the special
exception. Bright House is indeed correct that a statute found
unconstitutional under the Equal Protection Clause can be
remedied by either nullifying the statute or extending the
coverage of the statute to include those who are aggrieved by the
exclusion. The instant case, however, is not an equal protection
case.
Bright House attempts to extend the logic in Heckler to the First
Amendment context by way of Rappa v. New Castle County, 18 F.3d
1043, 1072-73 (3d Cir. 1994). Bright House quotes the Third
Circuit as holding that the proper remedy for content
discrimination generally cannot be to sever the statute so that
it restricts more speech than it did before. Yet Bright House
fails to quote the remainder of that sentence, where the court
notes that an exception to its rule is when there is specific
evidence of a legislative preference for elimination of the
offending provision.
As the Court discussed at length in its prior Opinion and Order,
there is specific evidence of Congress' intent to sever the
Government-Debt Exception from Section 227(b)(1)(A)(iii). The
Court therefore finds Bright House has failed to demonstrate a
substantial ground for difference of opinion over the Government-
Debt Exception's severability.
A full-text copy of the District Court's May 21, 2018 Opinion and
Order is available at https://tinyurl.com/y9es7fxa from
Leagle.com.
Stephan H. Sliwa, individually and on behalf of all others
similarly situated, Plaintiff, represented by Amanda J. Allen,
The Consumer Protection Firm, Amy L. Wells -- AWells@KeoghLaw.com
-- Keogh Law, LTD, pro hac vice, Donald L. Sawyer, Keogh Law,
LTD, pro hac vice, Stephen J. Stanley, Stephen J. Stanley,
Attorney & Counselor at Law, William Peerce Howard, The Consumer
Protection Firm, & Keith J. Keogh -- keith@keoghlaw.com -- Keogh
Law, LTD, pro hac vice.
Bright House Networks, LLC, Defendant, represented by Ryan D.
Watstein, Kabat Chapman & Ozmer LLP & Nathan David Chapman, Kabat
Chapman & Ozmer LLP.
Advanced Telesolutions, Inc., Defendant, represented by Andrew
J.J. Collinson -- acollinson@hinshawlaw.com -- Hinshaw &
Culbertson, LLP, Justin M. Penn -- jpenn@hinshawlaw.com --
Hinshaw & Culbertson, LLP & Ruel W. Smith --
rsmith@hinshawlaw.com -- Hinshaw & Culbertson, LLP.
United States of America, Intervenor, represented by Anjali
Motgi, US Department of Justice -- Civil Division.
CATHERINE ROSELLI: Faces "Gabbai" Suit in S.D. Florida
------------------------------------------------------
A class action lawsuit has been filed against The Law Office of
Catherine Roselli. The case is styled as Victor Gabbai,
individually and on behalf of all others similarly situated,
Plaintiff v. The Law Office of Catherine Roselli and John Does 1-
25, Defendants, Case No. 0:18-cv-61554-WPD (S.D. Fla., July 9,
2018).
The Law Office of Catherine Roselli is a Family law attorney in
Fort Lauderdale, Florida.[BN]
The Plaintiff is represented by:
Justin E. Zeig, Esq.
Zeig Law Firm, LLC
3595 Sheridan Street, Suite 103
Hollywood, FL 33021
Tel: (754) 217-3084
Email: justin@zeiglawfirm.com
CBJ CREDIT: Faces "Brink" Suit in W.D. New York
-----------------------------------------------
A class action lawsuit has been filed against CBJ Credit
Recovery. The case is styled as Casey Brink, individually and on
behalf of all others similarly situated, Plaintiff v. CBJ Credit
Recovery, Defendant, Case No. 1:18-cv-00755-EAW (W.D. N.Y.,
July 9, 2018).
CBJ Credit Recovery Inc. is a debt collection agency.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
Marcus & Zelman, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Tel: (732) 695-3282
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
CERNER CORP: Agrees to OT Settlement But Wants Deal Kept Secret
---------------------------------------------------------------
Dan Margolies, writing for KCUR 89.3, reports that after more
than three years of litigation, Cerner Corp. is settling a class
action lawsuit alleging it improperly failed to pay hundreds of
employees overtime wages.
The terms of the settlement, however, may not see the light of
day. Cerner asked the court for permission to file the settlement
agreement under seal, a motion unopposed by the plaintiffs.
In its motion, Cerner "adamantly denies" any wrongdoing but says
it's settling to avoid the expense, disruption and "negative
public attention" of continuing litigation.
"Accordingly, Cerner determined that settlement was in its best
interest, provided that plaintiff agreed not to prevent Cerner
from taking certain steps to try and ensure that the terms of the
settlement are not part of the public record," Cerner wrote in
its motion.
A spokesman for Cerner said he could not comment on the
settlement. Eric Dirks,Esq. an attorney for the plaintiffs,
likewise said he could not comment.
The case was filed in 2015 by Cerner employee Laura Scott and
alleged that Cerner improperly exempted so-called delivery
consultants and system analysts from overtime pay.
In her complaint, Scott contended the jobs were actually entry
level positions that required no background in systems analysis,
software engineering or computer programming.
In March 2017, a Jackson Court judge certified the case as a
class action, substantially increasing Cerner's exposure if were
found liable.
The case has been hard-fought, with more than three dozen
depositions taken, extensive discovery and the production of
hundreds of thousands of pages of data and documents, according
to Cerner's motion. After spending a full day in mediation, the
company said, the parties agreed to settle.
Cerner, which is based in North Kansas City, is one of the
world's biggest developers and providers of electronic health
records. The company has 26,000 employees worldwide, including
roughly 13,000 in the Kansas City area. Last year it earned
nearly $867 million after taxes on gross revenues of more than
$5.1 billion.
Cerner recently landed a 10-year, $10 billion contract to update
the U.S. Department of Veterans Affairs' electronic health record
system.
The Scott case is one of several that have been filed against
Cerner about its overtime policies. Four cases filed in federal
court were settled on undisclosed terms, as was another filed in
Cass County Circuit Court that was settled earlier this year.
Most of the cases involved the same attorneys on both sides.
Like the lawsuits brought by Scott, the cases alleged that Cerner
misclassified employees in order to avoid paying them overtime.
The Cass County action, for example, alleged that Cerner violated
Missouri's minimum wage law by denying overtime payments to
employees it describes as learning consultants.
In seeking to maintain the confidentiality of the settlement,
Cerner filed a motion in Cass County that's nearly identical to
the one it filed in the Scott case. Among other contentions, both
motions assert that public disclosure of the settlement terms
would encourage groundless copycat litigation by plaintiffs
seeking to extract similar settlements.
Although judges routinely grant such confidentiality requests in
wage-and-hour cases, they don't always do so. Last year, for
example, a federal judge in New York refused to seal a proposed
settlement between a clothing designer and an employee who
alleged she was not paid overtime.
The case was brought under the Fair Labor Standards Act, and the
judge ruled that the public had a right to know about a
settlement under a law intended to advance workers' knowledge of
their rights.
And judges on the 2nd U.S. Circuit Court of Appeals have
routinely denied requests to seal settlement agreements between
employers and their employees.
Pat Stueve, Esq. -- stueve@stuevesiegel.com -- a Kansas City
attorney who specializes in class action litigation but was not
involved in the Cerner cases, said the settlement in the Scott
case would typically require court approval under Missouri court
rules governing class-action lawsuits.
"And in those circumstances," Stueve said, "it is unusual for a
court to allow the settlement to be filed under seal unless there
is a showing of special circumstances."[GN]
CONWAY, AK: Police, Fireman Pay Suit Set for May 2019 Trial
-----------------------------------------------------------
Marisa Hicks, writing for Paris Express, reports that a trial has
been set in a class-action suit between local police and firemen
and the city of Conway.
The suit stems from a 2012 complaint filed in Faulkner County
Circuit Court by Conway Police Department K-9 officer Richard
Shumate and Conway Fire Department firefighter Damon Reed that
accused the city of breaching its contract for salary
improvements.
Questions for those who worked for the Conway police and fire
departments between Dec. 1, 2001, and Dec. 31, 2012, pertaining
to whether the funds previously promised through salary
improvements will be paid out will be answered in the spring.
Thomas P. Thrash, Esq. -- tpthrash@vorys.com -- who represents
the plaintiffs in this matter, began June 28 pretrial hearing
before Circuit Judge Troy B. Braswell Jr. by stating both parties
were ready to settle this case before a jury.
"We're at a point where we need the court to set us a trial
date," he said shortly after 9:15 a.m.
Parties entertained setting an April 2019 trial date but settled
on scheduling a one-week trial in May 2019.
Braswell granted the plaintiff's class action status back in
December 2015. However, the city appealed the decision to the
Arkansas Supreme Court.
The Supreme Court has since upheld Braswell's decision,
ultimately ruling Braswell did not abuse his discretion when he
certified about 200 Conway police officers and firefighters in
the breach of contract lawsuit despite claims made on the city's
behalf.
"A court abuses its discretion when it acts improvidently,
thoughtlessly, or without due consideration. ... We cannot say
that the court abused its discretion here, when it carefully
considered the complaint and matters in the record to find that
common questions were present," Associate Justice Rhonda K. Wood
wrote in a majority opinion earlier last year.
Braswell dismissed the plaintiffs' illegal exaction claim in
December 2015 but ruled in favor for police and fire employees
that were employed with the city between Dec. 1, 2001, and Dec.
31. 2012, to move forward in a class-action suit against the
city.
The lawsuit stems from a Conway City Council-approved quarter-
cent sales tax that was to be used "exclusively to the salaries
of the employees of the City of Conway," according to the ballot
resolution that was passed by Conway voters in August 2001.
Employees allege they did not receive money they were promised.
Should the city be found at fault and forced to repay these
police and firemen, repayment would be based off each member's
payment records. The plaintiffs' attorneys have previously argued
these employees are entitled to the interest the money they have
yet to receive has accrued over the years.
A week-long trial is set to begin May 6 in Faulkner County
Circuit Court. Prior to this trial, Braswell set a number of
deadlines during June 28 hearing to ensure both parties are
absolutely ready to go on the first day of the spring trial.
All discovery and evidence pertaining to this case must be
submitted within 90 days of the scheduled pretrial date prior to
the May 2019 trial. A pretrial hearing was scheduled for April
23, with the prior deadlines for evidence and other motions to be
submitted beforehand so that the trial process runs smoothly,
Braswell said.
Following the 90-day evidentiary deadline, is a 60-day cutoff for
all dispositive motions. Any pretrial motions, including motions
in limine, must be filed within 30 days of the April 23 pretrial
hearing.
Braswell also ordered mediation in this matter, which must be
completed two months before the pretrial hearing.[GN]
COOK COUNTY, IL: Judge Junks Proposed Bail Bond Practices Suit
--------------------------------------------------------------
Megan Crepeau, writing for Chicago Tribune, reports that a judge
has thrown out a lawsuit that alleged that Cook County's use of
cash bail was unconstitutionally discriminatory, finding it was
the prerogative of lawmakers, not judges, to set limits on the
way judges grant bonds.
In the order on June 26, Judge Celia Gamrath wrote that she
shares concern about the impact of unaffordable cash bail but
held that her intervention would violate "the constitutional
system of checks and balances."
"(The) court cannot step in to cure a perceived flaw in the
setting of individual bonds by individual judges assigned with
the task," she wrote.
The lawsuit against five Cook County judges alleged that the cash
bail system -- intended to ensure defendants' appearance in court
-- unconstitutionally discriminated against minority and poor
suspects.
The proposed class-action suit was filed in 2016 on behalf of two
detainees who were unable to post their cash bails and sat in
Cook County Jail for nearly a year before pleading guilty.
Alexa Van Brunt, Esq. -- a-vanbrunt@law.northwestern.edu -- one
of the attorneys who brought the suit, said the legal team plans
to appeal the judge's decision. Gamrath dismissed the lawsuit
before attorneys could make substantive arguments about the bail
system, she said.
"What we are asking (the judge) to do is to ensure that these
judges follow the law, and that is ultimately always a court's
role," Van Brunt said. "It feels political because she was being
asked to rule on the actions of other Circuit Court judges and,
frankly, she just punted it."
A statement from the Illinois attorney general's office, which
represented the judges in the suit, noted that "important steps"
toward bail reform were taken since the suit was filed in 2016.
It pointed to the move last year by Chief Judge Timothy Evans to
prohibit judges from setting bond in amounts higher than
defendants could afford to pay -- in effect, the same remedy that
the lawsuit sought.
As a result of the reform efforts, the proportion of felony
defendants released without having to pay any money has
skyrocketed, according to data from the chief judge's office.
Van Brunt cautioned, though, that while Evans' order was
"laudable," she said it won't carry the legal force that a
favorable ruling from Gamrath would have.
"While conditions have improved and there have been significant
reforms in terms of pretrial justice in the county, there are
still many people, especially black people, who are locked up
because they cannot afford bail," Van Brunt said.[GN]
COVANCE INC: Court Denies Bid to Strike Class Claims in "Sealock"
-----------------------------------------------------------------
In the case, JOHN SEALOCK, on behalf of himself, individually,
and on behalf of all others similarly situated, Plaintiff, v.
COVANCE, INC., Defendant, Case No. 17-CV-5857 (JMF) (S.D. N.Y.),
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York denied Covance's motion to strike the class
action allegations in Sealock's Amended Complaint, and granted
Sealock's cross-motion for conditional certification of a
collective action under FLSA as well as approval of collective
action notices and an opt-in form.
Sealock brings the putative collective and class action against
Covance for violations of overtime provisions of the Fair Labor
Standards Act ("FLSA"), and New York Labor Law ("NYLL"), as well
as the wage statement and wage notice provisions of NYLL.
Covance, a New Jersey corporation, is a global enterprise that
provides drug development services, including laboratory testing
and clinical trial management, to pharmaceutical and
biotechnology companies.
Sealock worked for Covance as a clinical research associate
("CRA") for nearly a year, from July 28, 2016 through May 17,
2017, largely from his home in the Bronx, New York. He alleges,
among other things, that Covance "intentionally misclassified"
him and other CRAs as exempt from the FLSA and NYLL, leading the
company to willfully fail to pay them the wages lawfully due to
them under the statutes.
Now pending are two motions: a motion by Covance to strike the
class action allegations in Sealock's Amended Complaint; and a
cross-motion by Sealock for conditional certification of a
collective action under FLSA as well as approval of collective
action notices and an opt-in form.
Judge Furman finds that Covance's motion to strike can be swiftly
rejected. As the Court has held that a motion to strike class
claims is considered premature if the issues raised are the same
ones that would be decided in connection with determining the
appropriateness of class certification under Rules 23(a) and
23(b) of the Federal Rules of Civil Procedure. Most, if not all,
of Covance's arguments, concern whether Sealock can satisfy the
requirements of Rule 23(a). Those arguments, however, are
exactly the sorts of issues that would be litigated and decided
in the context of a motion for the class certification.
Covance also contends that Sealock proposes an impermissible
"failsafe class." But putting aside whether that argument also
concerns the appropriateness of the class certification under
Rule 23, the Judge finds it too is premature. Accordingly, he
denied Covance's motion.
By contrast, in his motion for preliminary certification of a
collective action, Sealock carries his "low" burden to make a
modest factual showing" that he and "potential opt-in Plaintiffs
together were victims of a common policy or plan that violated
the law. In particular, the Judge finds that through
declarations from Sealock and other CRAs among other evidence,
Sealock offers sufficient general proof that members of the
putative collective were victims of a common policy to wrongfully
exempt them from the FLSA and, thus, to not pay them overtime
wages.
Covance's arguments to the contrary -- most notably, its argument
that CRAs are indeed lawfully exempt from the FLSA -- not only go
to the merits, which are beyond the scope of the present motion,
but also serve to confirm that there are common issues of fact
and law that render the case appropriate for conditional
certification.
Accordingly, Judge Furman granted Sealock's motion for
conditional certification of a collective action consisting of
current and former clinical research associates, or those working
in a similar role, who during the applicable FLSA limitations
period, performed any work for Defendant, and who consent to file
a claim to recover damages for overtime compensation that is
legally due to them.
Further, the Judge granted Sealock leave to send notice in the
forms he has proposed to the putative members of the collective
in New York, Florida, North Carolina, Tennessee, and Washington.
Within two weeks of the Memorandum Opinion and Order, Covance
will produce a computer-readable data file containing all
potential collective-action members' names, last known mailing
addresses, last known home and mobile telephone numbers, last
known e-mail addresses, work locations, and dates of employment.
Covance will not, in the first instance, produce any Social
Security numbers.
If a notice is returned as undeliverable, Covance will provide
the Social Security number of that individual to Sealock's
counsel. Any Social Security numbers so produced will be
maintained by Sealock's counsel alone and used for the sole
purpose of performing a skip-trace to identify a new mailing
address for notices returned as undeliverable. All copies of
Social Security numbers, including any electronic file or other
document containing the numbers, will be destroyed once the skip-
trace analysis is completed.
Within fourteen days following the close of the opt-in period,
Sealock's counsel will certify in writing to the Court that the
terms of the Order have been adhered to and that the destruction
of the data is complete. The Judge finds that these procedures
are sufficient to safeguard the privacy information of the
potential Plaintiffs. Finally, within one week of receiving that
information from Covance, Sealock will mail the notices.
The parties will appear for a conference with the Court on May
31, 2018, at 3:45 p.m., to set a schedule for the litigation. No
later than the Thursday before that conference, the parties will
submit a joint letter listing any issues that should be discussed
at the conference and attaching, as an exhibit, a proposed Civil
Case Management Plan and Scheduling Order (using the Court's
form, which is available at
http://nysd.uscourts.gov/judge/Furman). The Clerk of Court is
directed to terminate Docket Nos. 23 and 46.
A full-text copy of the Court's May 18, 2018 Memorandum Opinion
and Order is available at https://is.gd/R4mxxx from Leagle.com.
John Sealock, on behalf of himself, individually, and on behalf
of all others similarly-situated, Plaintiff, represented by
Alexander Todd Coleman -- atc@employmentlawyernewyork.com -- Law
Offices of Borrelli & Associates, Michael John Borrelli --
mjb@employmentlawyernewyork.com -- Law Offices of Borrelli &
Associates & Jeffrey Robert Maguire --
jrm@employmentlawyernewyork.com -- Borelli & Associates P.L.L.C.
Covance, Inc., Defendant, represented by Mark Andrew Konkel,
Kelley Drye & Warren, LLP, Michael D. Yim, Kelley Drye & Warren,
LLP, Robert Steiner, Kelley Drye & Warren, LLP & Diana Hamar,
Kelley Drye & Warren, LLP.
DALE CARNEGIE: Faces "Matzura" Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Dale Carnegie &
Associates, Inc. The case is styled as Steven Matzura, on behalf
of himself and all others similarly situated, Plaintiff v. Dale
Carnegie & Associates, Inc., Defendant, Case No. 1:18-cv-06216
(S.D. N.Y., July 9, 2018).
Dale Carnegie & Associates, Inc. provides workplace learning and
performance solutions. It offers leadership, team, and corporate
training courses, including skills, communications and human
relations/skills, leadership training for managers, sales
advantage, and sales success courses.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
DEUTSCHE BANK: Aug. 6 Lead Plaintiff Bid Deadline
-------------------------------------------------
Levi & Korsinsky, LLP announces that class action lawsuits have
commenced on behalf of shareholders of the following publicly-
traded companies. Shareholders interested in serving as lead
plaintiff have until the deadlines listed to petition the court;
further details about the cases can be found at the links
provided.
Deutsche Bank Aktiengesellschaft (NYSE:DB)
Class Period: March 20, 2017 - March 30, 2018
Lead Plaintiff Deadline: August 6, 2018
During the class period, Deutsche Bank allegedly made materially
false and/or misleading statements and/or failed to disclose
that: Deutsche Bank's internal control environment and
infrastructure were materially weak and deficient; and as a
result, Deutsche Bank's statements about the Company's business
and operations were materially false and misleading at all
relevant times.
To learn more go to: http://www.zlk.com/pslra-d/deutsche-bank-
aktiengesellschaft?wire=3 [GN]
DMNO LLC: Court Narrows Claims in Former Servers' FLSA Suit
-----------------------------------------------------------
The United States District Court for the Eastern District of
Louisiana granted in part and denied in part Plaintiffs' Motion
for Partial Summary Judgment in the case captioned JAMES BLACK,
ET AL., Plaintiffs, v. DMNO, LLC, ET AL., SECTION, "E",
Defendants, Civil Action No. 16-2708 (E.D. La.).
The Plaintiffs, all former servers of DMNO, LLC, d/b/a Doris
Metropolitan (Doris), bring this suit pursuant to the Fair Labor
Standards Act (FLSA) seeking to recover unpaid minimum wages and
tips they allege were misappropriated as a result of an invalid
tip pooling arrangement.
The Plaintiffs seek summary judgment that: (1) Doris' having
retained ten percent of the tip pool on shifts during which
Doris' general manager, Defendant Itai Ben Eli, acted as service
captain invalidates the entire tip pooling scheme for every shift
during the relevant time period; and (2) the Defendants are not
entitled to an offset of their FLSA wage liability through the
use of compulsory service charges.
The Court finds that the Defendants are not entitled to a tip
credit for shifts during which a portion of the tip pool was
retained in Doris' operating account.
Under the FLSA, an employer may pay an employee $2.13/hour,
instead of the national minimum wage of $7.25/hour so long as:
(1) the employee being paid less than minimum wage also earns
tips; (2) the total amount of tips earned equals or exceeds
$5.12/hour; and (3) all tips received by [the tipped] employee
have been retained by that employee.
In Salinas v. Starjem Restaurant Corp., 123 F. Supp. 3d at 468,
the U.S. District Court for the Southern District of New York
held that the occasional inclusion of coffee preparers in the
defendant restaurant's tip pooling scheme violated the FLSA,
explaining:
Defendants are, therefore, liable for unlawfully: (1) requiring
Plaintiffs to share tips with non-service employees when they
worked as bussers, runners, barbacks, or the unassisted coffee
preparer (i.e., in tip-eligible positions); and (2) taking the
tip credit against Plaintiffs' wages when they worked as stockers
or the coffee preparer assisted by the coffee helper.
Thus, as a matter of law, the Court concludes Doris' liability
for payment of the minimum wage based on Mr. Eli's occasional
inclusion in the tip pooling scheme is limited to those shifts
during which Mr. Eli acted as service caption and ten percent of
the tip pool was retained in Doris' operating account.
Accordingly, the Court grants the Plaintiffs' motion for summary
judgment that the Defendants violated the FLSA when Mr. Eli acted
as service captain and Doris retained ten percent of the tip pool
its operating account, but denies the motion to the extent
Plaintiffs seek to invalidate Doris' tip pooling scheme for the
entire statutory period based on these sporadic violations.
Instead, Doris is responsible for paying Plaintiffs minimum wage
for the hours worked during shifts on which Mr. Eli acted as
service captain and ten percent of the tip pool was retained in
Doris' operating account.
The Defendants are not entitled to an offset to their FLSA wage
liability through the use of compulsory service charges.
Under the Department of Labor's regulations, service charges and
other similar sums which become part of the employer's gross
receipts are not tips for the purposes of the FLSA. Where such
sums are distributed by the employer to its employees, however,
they may be used in their entirety to satisfy the FLSA's monetary
requirements. Before an employer may count service charges as an
offset to its minimum wage liability, however, at least two
prerequisites must be met. The service charge must have been
included in the establishment's gross receipts, and it must have
been distributed by the employer to its employees.
Accordingly, the Court grants the Plaintiffs' motion with respect
to this issue, as unopposed.
A full-text copy of the District Court's May 21, 2018 Order and
Reasons is available at https://tinyurl.com/ybzwcvxb from
Leagle.com.
James Black, individually and on behalf of similarly situated
employees, Mark Gandy, individually and on behalf of similarly
situated employees, Ashley Newton, individually and on behalf of
similarly situated employees, David Pierce-Feith, individually
and on behalf of similarly situated employees, Austin Lane,
individually and on behalf of similarly situated employees,
Patrice Jones, individually and on behalf of similarly situated
employees, Erin Lawrence, individually and on behalf of similarly
situated employees, Jeffrey Blair, individually and on behalf of
similarly situated employees, Zachary Adams, individually and on
behalf of similarly situated employees, Asaria Crittenden,
individually and on behalf of similarly situated employees,
Elizabeth Kuzmovich, individually and on behalf of similarly
situated employees, Larry J. Hunt, Jr., individually and on
behalf of similarly situated employees & Carlos Ayestas,
individually and on behalf of similarly situated employees,
Plaintiffs, represented by Jessica Michelle Vasquez, Vasquez Law
Office, & Laura Lanier Catlett, Laura L. Catlett, Attorney at
Law.
DMNO, LLC, Doron Moshe Rebi-Chia, Itai Ben Eli & Itamar Levy,
Defendants, represented by Steven Russell Cupp --
scup@fisherphillips.com -- Fisher & Phillips, LLP & Jaklyn Leigh
Wrigley -- jwrigley@fisherphillips.com -- Fisher & Phillips, LLP,
pro hac vice.
DOUGLAS L MEYER: Bissett Nursery Suit Brought Before NY Sup. Ct.
----------------------------------------------------------------
The class action styled as Bissett Nursery Corp., obo itself and
all other persons similarly situated as trust fund beneficiaries
of lien law trusts of which Brett Landscaping Inc, as successor
in interest to R & R Landscaping, is a trustee, Plaintiff v.
Douglas L. Meyer and Mary V. Meyer, Defendant, Case No.
607333/2018, was brought before the New York Supreme Court on
July 6, 2018).
Douglas L. Meyer is a Theatrical producer.[BN]
The Plaintiff is represented by:
MARSHALL M. STERN, ESQ.
17 CARDIFF COURT
HUNTINGTON STA, NY 11746
Tel: (631) 427-0101
The Defendant is represented by:
PHILLIPS ARTURA & COX, Esq.
165 S. WELLWOOD AVE, POB 405
LINDENHURST, NY 11757
Tel: (631) 226-2100
EARTH INC: Faces "Crosson" Suit in E.D. New York
------------------------------------------------
A class action lawsuit has been filed against Earth, Inc. The
case is styled as Aretha Crosson, individually and as the
representative of a class of similarly situated persons,
Plaintiff v. Earth, Inc. doing business as: EarthBrands.com,
Defendant, Case No. 1:18-cv-03951 (E.D. N.Y., July 10, 2018).
Earth, Inc. engages in concrete recycling and excavation. It also
supplies topsoil. The company was founded in 1973 and is based in
Itasca, Illinois.[BN]
The Plaintiff appears PRO SE.
ENCORE RECEIVABLE: Court Dismisses "Reynolds" FDCPA Suit
-----------------------------------------------------------------
Judge John Michael Vazquez of the U.S. District Court for the
District of New Jersey dismissed with prejudice the case, MELISSA
REYNOLDS, on behalf of herself and all others similarly situated,
Plaintiff, v. ENCORE RECEIVABLE MANAGEMENT, INC., and JOHN DOES
1-25, Defendants, Civil Action No. 17-2207 (JMV) (MF) (D. N.J.).
The Plaintiff alleges that the Defendant violated the Fair Debt
Collection Practices Act ("FDCPA") in its attempt to collect on a
debt she owed to Synchrony Bank. At some point prior to March
13, 2017, the Plaintiff incurred a debt obligation to Synchrony.
On March 13, 2017, the debt was past due and was referred to
Encore for collection.
In a letter dated March 13, 2017, the Defendant wrote to the
Plaintiff in an attempt to collect payment for the debt. The
March Letter included the overall account balance as well as the
current amount due.
On April 1, 2017, the Plaintiff filed a putative class action
before the Court, alleging one count for violations of provisions
of the FDCPA. She contends that she and others similarly
situated were sent letters, which would have affected their
decision-making with regard to the debt and have suffered harm as
a direct result of the abusive, deceptive and unfair collection
practices described therein.
The Defendant filed the instant motion to dismiss on May 5, 2017,
which the Plaintiff opposed. The Defendant replied on June 15,
2017. It filed a letter containing supplemental authority on
Feb. 27, 2018, to which the Plaintiff responded.
The Plaintiff has alleged three section of the FDCPA were
violated by the March Letter: Section 1692e(10), Section
1692g(a)(1), and Section 1692g(a)(3).
The first issue presented by the Plaintiff is whether the March
Letter gave the least sophisticated debtor the impression that
she could call the Defendant to dispute the debt. Judge Vazquez
explains that Judge Shipp issued a recent opinion that addressed
the precise issue. Rosa v. Encore Receivable Management, Inc.,
involved both the same collection letter and the same defendant.
Judge Shipp granted Encore's motion to dismiss.
Judge Vazquez agrees with Judge Shipp's reasoning in Rosa. He
says the validation notice in the March Letter is not
overshadowed or contradicted by the instruction to call Encore if
the Plaintiff had already paid the debt. The March Letter does
not indicate that the Plaintiff should telephone Encore to
dispute the debt. The validation notice is clearly expressed in
the same font, size, and color as the other text in the March
Letter. The validation notice also appears on the same side of
the March Letter. Accordingly, the March Letter does not leave
the least sophisticated consumer uncertain as to her rights under
the FDCPA, and therefore does not violate Section 1692g.
The second issue the Plaintiff raises is the alleged ambiguity
created by listing both the total account balance and the total
amount due in the March Letter. The Judge recognizes that the
Seventh Circuit's holding in Olson v. Risk Management
Alternatives, Inc. is merely persuasive and does not constitute
binding precedent on the Court. Nonetheless, he is persuaded by
its reasoning.
Specifically, the Seventh Circuit's analysis as to the phrase
"Now Due," is instructive. As explained in Olson, even to the
least sophisticated debtor, "Now Due" simply means that the debt
collector is willing to accept less than the total debt to bring
the account current. The debtor has the option of paying the
amount due, paying the total balance, or doing neither and
contesting the debt. These options do not contradict one
another, and he finds that the March Letter's reference to both
the overall account balance and the current amount due do not
support a violation of Section 1692g.
Finally, the Plaintiff's allegation regarding a violation of
Section 1692e is based on the same facts as those supporting the
alleged violation of Section 1692g. Because the Plaintiff's
claim under Section 1692e is based on the same allegations as her
claim under Section 1692g, the foregoing analysis as to Section
1692g is dispositive. Thus, the Plaintiff has failed to state a
violation of Section 1692e.
For the foregoing reason, Judge Marquez granted the Defendant's
motion to dismiss, and dismissed with prejudice the Plaintiffs
Complaint. Because the Plaintiff cannot change the language in
the March Letter, any attempted amendment to the Complaint would
be futile. An appropriate Order accompanies the Opinion.
A full-text copy of the Court's May 18, 2018 Opinion is available
at https://is.gd/GFQSEr from Leagle.com.
MELISSA REYNOLDS, On behalf of herself and all others similarly
situated, Plaintiff, represented by JOSEPH K. JONES --
info@legaljones.com -- Jones, Wolf & Kapasi, LLC & BENJAMIN
JARRET WOLF, Jones, Wolf & Kapasi, LLC.
ENCORE RECEIVABLE MANAGEMENT, INC., Defendant, represented by
PETER CIPPARULO, III -- peter.cipparulo@cipplaw.com -- LAW
OFFICES OF PETER CIPPARULO, III, ESQ..
EXACTIS: Data Breach Sparks Class Action Lawsuit
------------------------------------------------
PYMNTS reports that the first class action lawsuit against
Exactis has been filed in response to the company's massive data
breach that exposed the private information of more than 200
million U.S. consumers and 110 million business contacts. The
marketing and data aggregation firm was the subject of a data
breach in which customer information ended up on the internet for
hackers or anyone else to view.
Security researcher Vinny Troia discovered the breach in early
June. While it doesn't appear to include sensitive information,
such as a credit card account numbers or social security numbers,
it was close to two terabytes of data, including phone numbers,
addresses, emails and other information -- like interests, habits
and the number of one's children.
"It seems like this is a database with pretty much every U.S.
citizen in it," said Troia, founder of Night Lion Security, in
the report.
The civil case was filed in U.S. District Court in Florida by
attorneys Adam Levitt, Esq. -- alevitt@dlcfirm.com -- and Amy
Keller, Esq. akeller@dlcfirm.com -- of law firm DiCello Levitt &
Casey, along with their co-counsel. Keller is also co-lead
counsel in the recent Equifax data breach class action.
"The data compromised by Exactis' breach is even more severe than
financial information, such as credit card or bank account
numbers. Exactis' database included email and postal addresses,
whether a person had a pet, whether the person is a smoker and a
number of other personal interests. This type of information is
frequently used by hackers to steal identities and break into
your accounts," said DiCello Levitt & Casey Co-founder Levitt,
recognized as a pioneer in privacy cases.
Keller stressed that the recent rise in data breaches makes
attorneys' work all the more important: "Time and time again in
massive data breaches such as this, plaintiffs' lawyers
supplement the important work of government-led investigations to
secure meaningful relief for consumers. More and more companies
are monetizing our personal information without our consent. It's
important that these companies know that they will be held
accountable for their carelessness through lawsuits like
ours."[GN]
EXCLUSIVE SUV: Faces "Fischler" Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Exclusive SUV &
Limo Inc. The case is styled as Brian Fischler, individually and
on behalf of all other persons similarly situated, Plaintiff v.
Exclusive SUV & Limo Inc. doing business as: Blacklane,
Defendant, Case No. 1:18-cv-03971-NG-SMG (E.D. N.Y., July 10,
2018).
Blacklane GmbH is a startup company based in Berlin which
provides a chauffeur portal connecting people to professional
chauffeurs via their mobile app, website and hotline.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
EXPRESS SCRIPTS: Court Dismisses SAC in Securities Suit
-------------------------------------------------------
The United States District Court for the Southern District of New
York granted Defendants' Motion to Dismiss the second amended
complaint (SAC) in the case captioned IN RE EXPRESS SCRIPTS
HOLDING COMPANY SECURITIES LITIGATION, No. 16 Civ. 3338 (ER)
(S.D.N.Y.) .
Lead Plaintiff Teachers Insurance and Annuity Association (TIAA)
asserts causes of action individually and on behalf of similarly
situated shareholders based on the breakdown of the relationship
between Express Scripts and its largest customer, non-party
Anthem, Inc. (Anthem).
Express Scripts announced that it had entered into a ten-year
agreement with Anthem (PBM Agreement), under which Express
Scripts would provide exclusive PBM services for Anthem. Anthem
became Express Scripts' most important customer, and between
12.2% and 17% of Express Scripts' revenues were attributable to
the Agreement between 2012 and 2016.
During an investor conference call, Defendant Queller stated that
Express Scripts "had a great relationship with Anthem. The
relationship is very, very solid." He added that "they were
operating business as usual. And we look forward to having Anthem
as a client through the end of the contract term and we'd love to
have them for a longer time as well."
The JOPC met to attempt to resolve the dispute over the
operational breaches, but the meeting was unsuccessful. Anthem
reiterated its $15 billion pricing demand. Two weeks later.
Anthem provided Express Scripts with a formal notice of a pricing
breach of the PBM Agreement. Defendant Paz stated that Express
Scripts really enjoyed the Anthem relationship and that the
relationship was a two-way street.
Express Scripts filed its 2015 Form 10-K and stated that it was
actively engaged in good faith discussions with Anthem over the
pricing review. On a subsequent conference call, Defendant Paz
stated that Express Scripts was fully committed to good faith
negotiations in hopes of reaching a mutually beneficial
agreement. He added that several Express Scripts clients had what
we call price checks which] are pretty routine. But Express
Scripts refused to negotiate with Anthem when Anthem's CEO
traveled to Chicago to meet with Defendant Paz directly. Express
Scripts then sent Anthem the same pricing proposal.
One day after the Class Period closed, a redacted version of the
Anthem's complaint against Express Scripts became available. The
market price of Express Scripts common stock fell again that day.
Express Scripts filed counterclaims and revealed that between it
made five separate pricing proposals to Anthem that were
rejected.
The Plaintiff argues that the Defendants' statements to investors
about the PBM Agreement were material misstatements because the
Defendants chose to discuss Express Scripts' relationship with
Anthem but failed to disclose the companies' refusal to even
negotiate and mutual assertions of bad faith. The Defendants
argue that the Court already rejected this argument in its August
1, 2017 Opinion.
The Court finds that the Plaintiff has failed to allege new facts
in support of its argument that the Defendants misled investors
about the strength of Express Scripts' relationship with Anthem
and the nature of the renewal negotiations. The Court therefore
finds that Plaintiff has not stated a claim with respect to
statements made on the investor calls that discussed, at a high
level, the companies' relationship and ongoing negotiations.
The Plaintiff argues that the Defendants repeatedly and
consistently accounted for the Anthem Contract as if it were
highly probable that the contract would be renewed for at least
five more years when that was not true given, among other things,
the companies' massive $15 billion pricing dispute, mutual
breach-of-contract assertions, and repeated failures to engage in
any meaningful negotiations for months.
The Plaintiff offers only general facts about the breakdown
between the relationship between Express Scripts and Anthem and
still offers no compelling argument or support to suggest that
Express Scripts should have revised its accounting treatment of
the Pharmacy Benefits Manager (PBM) Agreement earlier than first
quarter 2016. Even if the Plaintiff had plausibly plead facts to
show that Express Scripts' accounting treatment should have been
different, the Plaintiff did not allege that the Defendants did
not believe that the accounting treatment was appropriate during
the Class Period; and therefore they have not stated a claim for
commission of securities fraud under Sections 10(b) and 20(a).
Although the Plaintiff admits that it can point to no new factual
allegations in support of scienter, it argues that the Court
misapprehended its argument, which is based on misstatements
regarding the accounting for the Anthem Contract on the basis
that it falsely asserted a high probability of renewal beyond the
initial 10-year term of the contract. But the problem with the
Plaintiff's claim is the same: the Plaintiff has failed to point
to any evidence that the Defendants knew their public statements
about renewal whether embodied in SEC filings or statements made
in investor calls were incorrect.
Therefore, the Plaintiff's claims must also fail because it has
not plead facts that raise a strong inference of scienter.
A full-text copy of the District Court's May 21, 2018 Opinion and
Order is available at https://tinyurl.com/y7wx7htn from
Leagle.com.
TIAA, Lead Plaintiff, represented by Adam David Hollander --
adam.hollander@blbglaw.com -- Bernstein Litowitz Berger &
Grossmann LLP, Gerald H. Silk -- jerry@blbglaw.com -- Bernstein
Litowitz Berger & Grossmann LLP, Rebecca Ellen Boon --
Rebecca.Boon@blbglaw.com -- Bernstein Litowitz Berger & Grossmann
LLP & Salvatore Jo Graziano -- sgraziano@blbglaw.com -- Bernstein
Litowitz Berger & Grossmann LLP.
Melbourne Municipal Firefighters' Pension Trust Fund,
Individually and on behalf of all others similarly situated,
Plaintiff, represented by Gerald H. Silk, Bernstein Litowitz
Berger & Grossmann LLP.
Employees' Retirement System of the State of Hawaii, Movant,
represented by Michael Walter Stocker -- mstocker@labaton.com --
Labaton & Sucharow LLP.
Express Scripts Holding Company, Defendant, represented by Jay B.
Kasner -- jay.kasner@skadden.com -- Skadden, Arps, Slate, Meagher
& Flom LLP, Scott D. Musoff -- scott.musoff@skadden.com --
Skadden, Arps, Slate, Meagher & Flom LLP, Andrew Stuart Corkhill
-- andrewcorkhill@quinnemanuel.com -- Quinn Emanuel, Christopher
Chad Johnson -- chadjohnson@quinnemanuel.com -- Bernstein
Litowitz Berger & Grossmann LLP, Jacob J. Waldman --
jacobwaldman@quinnemanuel.com -- Quinn Emanuel Urquhart &
Sullivan, Jesse Bernstein -- jessebernstein@quinnemanuel.com --
Quinn Emanuel Urquhart & Sullivan, Joshua R. Rosenthal --
joshuarosenthal@quinnemanuel.com -- Quinn Emanuel Urquhart &
Sullivan LLP, Michael Barry Carlinsky --
michaelcarlinsky@quinnemanuel.com -- Quinn Emanuel, Michael
Charles Griffin -- michael.griffin@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP & Michael John Lyle --
mikelyle@quinnemanuel.com -- Quinn Emmanuel Urquhart & Sullivan,
LLP, pro hac vice.
George Paz, Timothy Wentworth, Eric Slusser, David Queller &
James M. Havel, Defendants, represented by Jay B. Kasner,
Skadden, Arps, Slate, Meagher & Flom LLP, Scott D. Musoff,
Skadden, Arps, Slate, Meagher & Flom LLP, Andrew Stuart Corkhill,
Quinn Emanuel, Christopher Chad Johnson, Bernstein Litowitz
Berger & Grossmann LLP, Jacob J. Waldman, Quinn Emanuel Urquhart
& Sullivan, Jesse Bernstein, Quinn Emanuel Urquhart &
Sullivan,Joshua R. Rosenthal, Quinn Emanuel Urquhart & Sullivan
LLP, Michael Barry Carlinsky, Quinn Emanuel & Michael Charles
Griffin, Skadden, Arps, Slate, Meagher & Flom LLP.
FACEBOOK INC: Partial Ban-Lift Invites Suit by Crypto Community
---------------------------------------------------------------
Priyamvada Singh, writing for AMB CRYPTO, reports that in a
recent case, the internet giant Facebook reversed its ban on
cryptocurrency advertisements that first came into being earlier
this year. However, Facebook still stands firm against the
promotion of binary options and ICOs on the platform.
The policy update in favor of cryptocurrency ads has not altered
the action plan of the crypto community. Several crypto-backed
businesses and associations scattered on the world-map have come
together with the intent of suing internet platforms imposing
such bans. More so, the community is likely to file a lawsuit
opposing the same.
According to reports from the Russian media, crypto associations
have planned to file the class-action lawsuit against multiple IT
corporations operating internationally. The statement was
confirmed by the President of Russian Association of
Cryptocurrencies and Blockchain [RACIB], Yuri Propachkin.
RACIB and its counterparts from around the globe have agreed and
made accusations that whether it is Facebook or Google, ban on
cryptocurrency ads and ICOs is just the product of a cartel
agreement. Pripachkin told the Russian media:
"We will continue [preparing the lawsuit] since they did not
cancel the restriction on ICOs. We'll press on to the end. We
will slightly correct our legal position."
Facebook has uplifted the ban on cryptocurrency ads only for pre-
approved advertisers. Therefore, not everyone who desires to
place crypto ads can do so. Organisations from Eurasia, Korea,
and China have also stepped forward in disapproval of the ban,
namely, Eurasian Blockchain Association [EBA], Korea Venture
Business Association [KOVA], and Chinese Association of
Cryptocurrency Investors [LBTC].
As for the funding part of this legal equation, the community
expects fellow crypto-touters to dole out voluntary donations, in
order to cover the lawsuit filing charges. The filing is planned
under the U.S. Jurisdiction, most likely in New York and Wyoming.
Alistair Milne, an entrepreneur and Bitcoin evangelist also
tweeted on the matter to question the partial ban.[GN]
FANNIE MAE: Court Narrows Claims in "Banneck" Suit
--------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the
Northern District of California denied Fannie Mae's motion to
dismiss the case, JAMES BANNECK, Plaintiff, v. FEDERAL NATIONAL
MORTGAGE ASSOCIATION, Defendant, Case No. 3:17-cv-04657-WHO (N.D.
Cal.), except that Banneck's requests for other forms of
equitable relief are dismissed.
Fannie Mae, a for-profit corporation, is a government-sponsored
enterprise chartered by Congress to make home ownership more
accessible by purchasing mortgages from lenders in the secondary
mortgage market. It purchases "conventional conforming" loans,
which means that they are less than $417,000 and have certain
prescribed risk characteristics. It then bundles them as
securities or holds them in its portfolios. Mortgage lenders and
brokers contracting with Fannie Mae must lease or license Fannie
Mae's Desktop Underwriter system ("DU System") and use it to
submit mortgage applications.
Banneck owned certain real estate subject to a mortgage lien. In
February 2010, he negotiated a short sale of his real estate
satisfying both his first and second mortgages. After waiting
the obligatory two years following his short sale, Banneck sought
to obtain a mortgage loan through Red Rock Mortgage to purchase a
residential property in Las Vegas, Nevada, in or around April or
May 2013. He was denied conventional mortgage financing,
allegedly because his DU Findings Report contained a "Refer with
Caution" recommendation. He claims that the "Refer with Caution"
recommendation resulted from Fannie Mae inaccurately identifying
his previous short sale as a foreclosure, which automatically
disqualifies an applicant for conventional mortgage financing for
seven years, rather than two.
According to Banneck, his DU Findings Report correctly identified
the previous short sale, but also manufactured a non-existent
foreclosure because the short sale was more than two years prior.
He alleges that he requested that Red Rock Mortgage provide him
with a complete copy of the DU Findings Report, but Red Rock
refused to provide it.
Banneck alleges that Fannie Mae's internal documents acknowledge
that it is subject to Fair Credit Reporting Act ("FCRA") (and,
correspondingly, the California Consumer Credit Reporting
Agencies Act ("CCRAA")) when it uses consumer credit reports.
According to him, Fannie Mae became "increasingly aware" in 2012
and 2013 of complaints from borrowers, mortgage lenders/brokers,
consumer reporting agencies, resellers, consumer reporting trade
industry associations, the Consumer Financial Protection Bureau,
and members of Congress, but it refused to reprogram the DU
System.
On Aug. 12, 2017, Banneck filed the consumer class action against
Fannie Mae alleging two claims under the CCRAA and one claim
under the FCRA. He alleges that Fannie Mae's DU system, which
lenders use to determine whether an applicant's loan is eligible
for purchase by Fannie Mae, generated a DU Findings Report that
inaccurately identified his prior short sale as a foreclosure and
impacted his ability to have his loan application approved. And
he contends that Fannie Mae prohibits mortgage originators from
providing consumers with a copy of the information included in
the DU Findings Report, in violation of the CCRAA and FCRA.
Judge Orrick previously allowed Banneck's "reasonable procedures"
claim under section 1785.14(b) to proceed and dismissed his other
claims. He then filed an amended complaint ("AC").
Fannie Mae now moves to dismiss his prohibited disclosure claims
under both acts because its contracts, on which Banneck relies,
expressly permit disclosure. It also argues that the penalty bar
under the Housing and Economic Recovery Act of 2008 ("HERA")
precludes Banneck's requests for statutory damages and injunctive
relief, and his willfulness claims fail because Fannie Mae's
interpretation that FCRA and the CCRAA did not apply to it was
objectively reasonable.
The Judge finds that Fannie Mae fails to convince him that he
should place greater weight on cases analyzing a different
statute in the face of controlling precedent explicitly
indicating that FCRA's provision is "compensatory, not punitive.
Since FCRA's statutory damages are not punitive, or "in the
nature of penalties," Fannie Mae's motion to dismiss Banneck's
request for statutory damages will be denied.
He also cannot accept Fannie Mae's narrow interpretation of
Banneck's prohibited disclosure claims. First, his complaint
references Fannie Mae's practice of prohibiting disclosure,
irrespective of the contractual language. Second, the
contractual language appears to prevent disclosure of the
complete contents of DU Findings Reports. And third, the
Plaintiff explicitly alleges that he requested a copy of the DU
Findings Report and his prospective lender refused.
Under these circumstances, Banneck has plausibly pleaded his
prohibited disclosure claims. Hence, he will deny Fannie Mae's
motion to dismiss these claims.
The Judge also finds that the Plaintiff has plausibly pleaded
Fannie Mae's willful violation of the statutes. He must accept
Banneck's plausible allegations as true and draw all reasonable
inferences in his favor. The Plaintiff alleges that Fannie Mae
uses its DU System to assemble consumer credit information along
with details from the loan application through its DU System, and
evaluates this information to generate the DU Findings Report,
containing findings, conclusions, comments, and results
concerning the applicant's eligibility for credit, which it then
provides to lenders or brokers. The allegations lead to the
reasonable interpretation that a Fannie Mae is a CRA and its DU
Findings Reports are "consumer reports" under FCRA.
Finally, the Judge finds that Banneck provides no basis for his
requests for other equitable relief. The asserted statutes limit
the forms of relief available to private litigants to actual
damages for negligent violations, statutory and punitive damages
for willful violations, and attorneys' fees and costs. His
request for other equitable relief, including disgorgement,
restitution, "recessionary" damages, will be dismissed.
In accordance with the foregoing, Judge Orrick denied Fannie
Mae's motion to dismiss, except that Banneck's requests for other
forms of equitable relief are dismissed. Fannie Mae will answer
the AC within 20 days.
A full-text copy of the Court's May 18, 2018 Order is available
at https://is.gd/pFOTUO from Leagle.com.
James Banneck, individually and on behalf of all others similarly
situated, Plaintiff, represented by Paul B. Mengedoth , Mengedoth
Law PLLC, James A. Francis -- info@consumerlawfirm.com -- Francis
and Mailman, P.C., pro hac vice, John Soumilas, Francis and
Mailman, P.C., pro hac vice, Kristi Cahoon Kelly --
kkelly@kellyandcrandall.com -- Kelly and Crandall PLC, pro hac
vice, Lauren K.W. Brennan, Francis and Mailman PC, pro hac vice,
Sylvia Antalis Goldsmith -- info@goldsmithlawyers.com --
Goldsmith and Associates, LLC, pro hac vice & Stephanie R. Tatar
-- help@TatarLaw.com -- Tatar Law Firm, APC.
Federal National Mortgage Association, Defendant, represented by
Elizabeth Lemond McKeen -- emckeen@omm.com -- O'Melveny & Myers
LLP & Danielle Nicole Oakley -- doakley@omm.com -- O'Melveny and
Myers LLP.
FBCS INC: Faces "Joseph" Suit in M.D. Florida
---------------------------------------------
A class action lawsuit has been filed against FBCS, Inc. The case
is styled as Racquel Josephs also known as: Racquel Vassell,
individually and on behalf of all others similarly situated,
Plaintiff v. FBCS, Inc., Cavalry SPV I, LLC and John Does 1-25,
Defendants, Case No. 8:18-cv-01623-VMC-MAP (M.D. Fla., July 6,
2018).
FBCS, Inc. is a financial planner in Hatboro, Pennsylvania.[BN]
The Plaintiff is represented by:
Justin Zeig, Esq.
Zeig Law Firm, LLC
3475 Sheridan Street, Suite 310
Hollywood, FL 33024
Tel: (754) 217-3084
Fax: (754) 217-3084
Email: justin@zeiglawfirm.com
FORD MOTORS: Class Suit Trial Date Vacated for Procedural Failure
-----------------------------------------------------------------
Cat Fredenburgh, writing for Lawyerly, reports that the judge
overseeing a massive class action against Ford over its
PowerShift transmission has vacated the trial date, blaming the
lead applicant's numerous "procedural failures".
Justice Nye Perram vacated the December 3 hearing date due to the
large number of outstanding issues that need to be resolved
before the case can move to trial, including matters involving
discovering, examination of documents from US proceedings, expert
evidence, a common fund, and an opt-out notice.
The judge acknowledged that progress had been made since Corrs
Chambers joined that case to assist class action firm Bannister
Law, but said that resolving the outstanding issues within five
weeks so that Ford would have time to respond was not feasible or
fair.
"Rome, however, was not built in a day and an entire class action
cannot be strapped up in five weeks . . . Whilst I think it
likely that the Applicant can get her house in order by the trial
date of 3 December 2018 that is not the question. The issue is
instead whether the case as a whole can be prepared by that date.
The case has two parties to it and these include Ford Australia,"
Judge Perram said.
"There have been many procedural failures on the Applicant's part
since the case was commenced in May 2016. I will not catalogue
them. It suffices to say that, at this late stage, to visit on
the Respondent a large share of the procedural burden arising
from the Applicant's own desultory attitude to this litigation
would be unjust," the judge said.
In an earlier hearing, Judge Perram told the applicants "get your
act together" and warned "I'm at the end of my tether."
Corrs Chambers joined the case in May, three weeks after a court
heard Bannister Law could be forced off over a spat with the
case's funder, Martin Place Litigation Services.
It appears the firm remains working on the case for now,
alongside Corrs. It is not known what arrangement the two firms
have, and whether the funding dispute between Bannister and
Martin Place is resolved with the appointment of Corrs.
Spokespersons for the two Melbourne-based firms did not respond
to earlier requests seeking comment.
The two firms have their hands full, with the class expecting a
dispatch of over 256,000 documents from a settled US class action
against Ford. Both cases allege certain Ford Fiesta, Focus and
EcoSport models -- those equipped with the PowerShift
transmission -- were unsafe and that Ford failed to adequately
communicate to customers. Approximately 70,000 vehicles were
affected in Australia, the class alleges.
The barrister acting for the class, Ian Pike, SC, --
pike@elevenwentworth.com -- assured Judge Perram at a May 1
hearing that the documents would be reviewed by June 8, but the
timetable seemed doubtful to the judge.
"Doesn't that sound a trifle unrealistic?" Judge Perram had
asked.
Ford's barrister Charles Scerri, QC -- cmscerri@vicbar.com.au --
agreed, saying he was "grossly skeptical" of the "completely
hopeless timetable".
Ford was fined $10 million late April by the Federal Court in a
separate case over the company's PowerShift transmission system
brought by the Australian Competition and Consumer Commission.
Justice John Middleton found that Ford failed to adequately
communicate with customers who made complaints about their Ford
vehicles.
"Ford had inadequate processes which caused many customers to
purchase new replacement vehicles at a significant additional
cost to the customers, and thereby engaged, in trade or commerce,
in conduct that was in all the circumstances unconscionable in
contravention . . . of the Australian Consumer Law," the judge
said.
The applicant was represented by Ian Pike with Eleven Wentworth
and solicitors from Bannister Law.
Pike is from and was instructed by Bannister Law. Ford is
represented by Charles Scerri from Castan Chambers and solicitors
from Allens.
The class action is Biljana Capic v Ford Motor Company of
Australia Ltd ACN 004 116 223.[GN]
FOREMOST INSURANCE: Oct. 5 "Braden" Class Deal Fairness Hearing
---------------------------------------------------------------
The United States District Court for the Western District of
Arkansas, Texarkana Division, issued an Order granting the
Plaintiffs' Motion for Preliminary Approval of Class Settlement
in the case captioned DAVID BRADEN and DALE BROWN, individually
and on behalf of all others similarly situated, Plaintiffs, v.
FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, Defendant,
Case No. 4:15-cv-4114 (W.D. Ark.).
The Stipulation and Proposed Settlement are preliminarily
approved as fair, adequate, and reasonable.
The following Settlement Class is conditionally certified for
settlement purposes only:
Persons who had a Covered Loss and who, during the Class
Period, received a Qualifying ACV Payment. Excluded from the
Class are: (1) Persons that received payment in the full amount
of insurance shown on the declarations page of the Homeowners
Insurance Policy; (2) Foremost and its affiliates, officers, and
directors; (3) members of the judiciary and their staff to whom
this Action is assigned; (4) Persons who have a pending
bankruptcy or whose claims were discharged in a bankruptcy
proceeding; (5) Persons who executed a release of the claims set
forth herein; and (6) Plaintiffs' counsel.
The Court will hold a Final Approval Hearing to consider the
fairness, reasonableness, and adequacy of the Proposed Settlement
at 9:00 a.m., October 5, 2018, at the United States Courthouse,
Texarkana, Arkansas.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/y7e75juy from Leagle.com.
David Braden, Individually and on behalf of all others similarly
situated & Dale Brown, Individually and on behalf of all others
similarly situated, Plaintiffs, represented by A.F. (Tom)
Thompson, III, Murphy, Thompson, Arnold, Skinner & Castleberry,
D. Matt Keil, Attorney at Law, James M. Pratt, Jr., James M.
Pratt, Jr., P.A., John C. Goodson, Keil & Goodson, Kenneth P.
Castleberry, Murphy, Thompson, Arnold, Skinner & Castleberry,
Stevan Earl Vowell, Taylor Law Firm, Timothy J. Myers, Taylor Law
Firm, W.H. Taylor, Taylor Law Firm, William B. Putman, Putman Law
Office, Jason Earnest Roselius -- jason@mroklaw.com -- Mattingly
& Roselius, R. Martin Weber, Jr. -- mweber@crowleynorman.com --
Crowley Norman LLP & Richard E. Norman --
rnorman@crowleynorman.com -- Crowley Norman LLP.
Foremost Insurance Company Grand Rapids, Michigan, Defendant,
represented by J. Dennis Chambers -- dchambers@arwhlaw.com --
Atchley, Russell, Waldrop & Hlavinka, Marilyn Montano, Jackson
Walker L.L.P. & Stacy Allen, Jackson Walker LLP.
FRANK SMYTHSON: Faces "Duncan" Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Frank Smythson of
Bond Street, Inc. The case is styled as Eugene Duncan, on behalf
of himself and all others similarly situated, Plaintiff v. Frank
Smythson of Bond Street, Inc., Defendant, Case No. 1:18-cv-06136-
RA (S.D. N.Y., July 6, 2018).
Frank Smythson Ltd. supplies stationery and leather goods. The
Company offers books, business and office products, diaries,
handbags and purses, ladies' and men's leather goods, pens, photo
albums and frames, refills, technology accessories, travel goods,
jewelry boxes, wedding stationeries, Christmas cards, and
presents.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
FSC BARBER: Faces "Bishop" Suit in S.D. New York
------------------------------------------------
A class action lawsuit has been filed against FSC Barber LLC. The
case is styled as Cedric Bishop, on behalf of himself and all
others similarly situated, Plaintiff v. FSC Barber LLC doing
business as: Fellow Barber, Defendant, Case No. 1:18-cv-06205
(S.D. N.Y., July 9, 2018).
Fsc Barber - Zzano LLC is a privately held company in Brooklyn,
NY and is a single location business, categorized under
Barbers.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
GENTING NEW YORK: Faces "Duncan" Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Genting New York
LLC. The case is styled as Eugene Duncan, on behalf of himself
and all others similarly situated, Plaintiff v. Genting New York
LLC doing business as: Resorts World, Defendant, Case No. 1:18-
cv-06100 (S.D. N.Y., July 5, 2018).
Genting New York LLC develops and operates video lottery
facilities. The company was formerly known as New Quest, LLC. The
company was incorporated in 2008 and is based in Jamaica, New
York. Genting New York LLC operates as a subsidiary of Genting
Malaysia Berhad.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
GIVENCHY CORP: Faces "Duncan" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Givenchy
Corporation. The case is styled as Eugene Duncan, on behalf of
himself and all others similarly situated, Plaintiff v. Givenchy
Corporation, Defendant, Case No. 1:18-cv-06137 (S.D. N.Y., July
6, 2018).
Givenchy Corporation distributes jewelry. The company was
incorporated in 1988 and is based in New York, New York.[BN]
The Plaintiff appears PRO SE.
GLORIA JEANS: Faces "Matzura" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Gloria Jean's
Gourmet Coffees Corp. The case is styled as Steven Matzura, on
behalf of himself and all others similarly situated, Plaintiff v.
Gloria Jean's Gourmet Coffees Corp., Defendant, Case No. 1:18-cv-
06215 (S.D. N.Y., July 9, 2018).
Gloria Jean's Coffees is a franchised specialty coffeehouse
company that has opened more than 1,000 coffee houses across 39
markets worldwide, including over 460 in Australia. In 2014,
Gloria Jeans was purchased by the Retail Food Group for $163.5
million.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
GOGO INC: Bronstein Gewirtz Files Securities Fraud Class Suit
-------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a
class action lawsuit has been filed against Gogo Inc. ("Gogo" or
the "Company") (NASDAQ: GOGO) and certain of its officers, on
behalf of shareholders who purchased or otherwise acquired Gogo
securities between February 27, 2017 and May 7, 2018 (the "Class
Period"). Such investors are encouraged to join this case by
visiting the firm's site: www.bgandg.com/gogo.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The Complaint alleges that throughout the Class Period,
Defendants made materially false and/or misleading statements
and/or failed to disclose that: (1) Gogo's 2Ku antenna had more
reliability issues than the public was led to believe; (2) Gogo's
2Ku antennas required costly installation and faced costly
remediation challenges or required replacement due to deicing
fluids from planes infiltrating the 2Ku system, as well as
manufacturing and software issues; (3) consequently, Gogo would
not be able to meet its previously issued 2018 guidance; and (4)
as a result, the company's financial statements were materially
false and misleading at all relevant times.
On May 4, 2018, Gogo revealed its quarterly earnings results and
said that it would not meet its earlier EBITDA profit guidance of
$75M-$100M. Gogo then withdrew "its previously provided 2018
guidance for Adjusted EBITDA, airborne Cash CAPEX, and airborne
equipment inventory purchases related to airline-directed
installations, as well as Free Cash Flow guidance." Following
this news, Gogo stock dropped 13% to close at $8.33 per share on
May 4, 2018.
Then on May 8, 2018, Moody's lowered Gogo's credit ratings.
Following this news, Gogo stock dropped roughly 36% to close at
$5.06 per share on May 8, 2018.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/gogo or you may contact Peretz Bronstein, Esq. or
his Investor Relations Analyst, Yael Hurwitz of Bronstein,
Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss
in Gogo you have until August 27, 2018 to request that the Court
appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Contact:
Peretz Bronstein,Esq.
Yael Hurwitz,Esq.
Bronstein, Gewirtz & Grossman, LLC
Telephone: 212-697-6484
Email: info@bgandg.com
peretz@bgandg.com [GN]
GOGO INC: Levi & Korsinsky Files Securities Fraud Class Suit
------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Gogo Inc. ("Gogo") (NASDAQ:GOGO) between February
27, 2017 and May 7, 2018. You are hereby notified that a
securities class action lawsuit has been commenced in the United
States District Court for the Northern District of Illinois. To
get more information go to:
http://www.zlk.com/pslra-d/gogo-inc?wire=3
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or
failed to disclose that: (1) Gogo's 2Ku antenna had more
reliability issues than the public was led to believe; (2) Gogo's
2Ku antennas required costly installation and faced costly
remediation challenges or required replacement due to deicing
fluids from planes infiltrating the 2Ku system, as well as
manufacturing and software issues; (3) consequently, Gogo would
not be able to meet its previously issued 2018 guidance; and (4)
as a result, the company's financial statements were materially
false and misleading at all relevant times.
If you suffered a loss in Gogo you have until August 27, 2018 to
request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve
as a lead plaintiff.
Contact:
Joseph E. Levi, Esq.
Levi & Korsinsky, LLP
30 Broad Street - 24th Floor
New York, NY 10004
Telephone: (212) 363-7500
Toll Free: (877) 363-5972
Fax: (212) 363-7171
Website: www.zlk.com
Email: jlevi@levikorsinsky.com [GN]
GOGO INC: Vincent Wong Files Securities Fraud Class Suit
--------------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of shareholders of the following companies.
If you suffered a loss you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
Gogo Inc. (NASDAQ:GOGO)
Lead Plaintiff Deadline: August 27, 2018
Class Period: February 27, 2017 and May 7, 2018
Get additional information: http://www.wongesq.com/pslra-c/gogo-
inc?wire=3 [GN]
HARDEE'S: Faces Class Action Lawsuit After Hepatitis A Outbreak
---------------------------------------------------------------
Rachel Lundberg, writing for WCNC, reports that a class action
lawsuit was filed against a west Charlotte Hardee's after
thousands of people were potentially exposed to hepatitis A in
early June.
Over 1,400 vaccines were administered by Mecklenburg County
health officials to people who may have been exposed at the
Hardee's on Little Rock Road between June 13-23.
The lawsuit, which was just filed on June 28, will include all of
the potentially affected customers, which is estimated to be
around 4,000 people.
Brett Dressler, Esq. -- bdressler@sellersayers.com --
one of the attorneys on the case, said in the coming months,
everyone will be notified of the class action suit and have the
opportunity to opt out.
"Part of what these lawsuits are about is trying to raise a
higher level of awareness about hep a and the risk it carries
inside the restaurant business," Dressler said.
Plus, the lawsuit covers damages. The following are listed in the
paperwork: potential exposure, suffering, wage loss, medical and
travel expenses, emotional distress, fear of harm and
humiliation, pain or injury.
This go-around is not the first time for Dressler. Last year, he
filed a different lawsuit against another Hardee's owner in South
Carolina in a similar case.
"There was another similar set of circumstances, about 1,500-
2,000 people affected there," Dressler said. That case was later
resolved and dismissed.
The defendant, Morning Star LLC, which is a franchisee of several
Hardee's, did not list a contact number or email online. NBC
Charlotte reached out to Hardee's for comment but has yet to
receive a response.[GN]
HIGHPOINT SOLUTIONS: Data Breach Case "No Harm, No Foul"
--------------------------------------------------------
Jack Greiner, writing for Cincinnati.com, reports that a former
employee of a healthcare technology consulting company recently
failed in her data breach claim against the company. Ultimately
it was a case of no harm no foul.
In November 2017, Jaclyn Moore filed a class action suit against
her former employer HighPoint Solutions LLC, and the company's
former human resources manager, Christine Cushman.
Moore's lawsuit came in response to HighPoint's widely publicized
announcement that Cushman had stolen almost $1 million over a
two-year period by using private financial information the
company maintained regarding subcontractors. The Pennsylvania
District Attorney's office reported Ms. Cushman used the stolen
information to issue herself 45 fraudulent checks. HighPoint said
that it was the only victim in the theft and no client, employee,
or subcontractor bank account ever received or had any funds
withdrawn.
But Moore alleged HighPoint and Cushman failed to secure her
personally identifying information. And she asked the court to
certify the case as a class action, on behalf of former
employees, agents, subcontractors, services providers, customers
and their families who were also victimized. Moore's claims
against HighPoint included breach of fiduciary duty, intrusion
upon seclusion, breach of implied contract, negligence, and
violation of the New Jersey Computer Related Offenses Act.
But Moore ran into an obstacle that many plaintiffs experience in
data breach cases. The Court held that Moore failed to produce
any evidence that she actually sustained a concrete injury
resulting from the defendants' conduct. Specifically, she
couldn't prove Cushman even accessed her personal identifying
information, much less that anyone misused the data in any way.
The best argument Moore could muster was that Cushman's criminal
conduct increased the risk that she would experience identity
theft. But an increased risk is not a concrete injury. It is
merely a possibility. That meant Moore's case had no possibility
of success. [GN]
HORMEL FOODS: Pork Producers Face Price-Fixing Suit
---------------------------------------------------
Kristen Leigh Painter, writing for Star Tribune, reports that
Consumers in Minnesota brought a class-action lawsuit against the
nation's largest pork producers, saying that a data services firm
provided information that allowed them to fix prices.
A proposed class-action lawsuit filed in Minnesota on June 28
alleges the nation's largest pork companies broke antitrust laws
by colluding to artificially inflate consumer pork prices.
The lawsuit, submitted in the U.S. District Court of Minnesota,
is brought against Austin-based Hormel Foods Corp. and eight
other companies, including Tyson Foods, JBS USA and Smithfield
Foods.
The scheme, according to the complaint, began in 2009 when
Indiana-based Agri Stats, a provider of data services to
agricultural industries, approached the pork companies about
creating a benchmarking report that would include financial
information, slaughter rates and supply levels.
Benchmark reports are a legal industry tool for gauging a
company's performance, but plaintiffs believe Agri Stats took it
a step too far. The goal, the complaint alleges, was for the
companies "to use this detailed sensitive information for the
purposes of monitoring each other's production and pricing ... so
as to maintain a reduction of production and an increase of
price."
The maker of a number of Hormel-branded packaged meat products
says the allegations are erroneous.
"Hormel Foods is a 127-year-old global branded food company with
a reputation as one of the most respected companies in the food
industry," the company said in a statement. "We are confident
that any allegations such as these are completely without merit.
We intend to vigorously defend this lawsuit."
Agri Stats, a co-defendant in the case, is facing similar
litigation for its data-sharing practices within the broiler
chicken industry. Hagens Berman Sobol Shapiro, a Seattle-based
law firm, brought the pork and poultry cases and is seeking
class-action status for both. Minneapolis-based Gustafson Gluek
is acting as local counsel on the pork lawsuit.
The four largest companies, Smithfield, Tyson, JBS and Hormel,
claim roughly 70 percent of the market. Consolidation within the
meatpacking industry lends itself to noncompetitive behavior, the
lawsuit suggests.
The complaint, which lists as plaintiffs a dozen consumers from
Minnesota and several other states, alleges defendants broke
antitrust laws, unfair competition laws, consumer protection laws
and unjust enrichment common laws within 11 states. The Hagens
Berman law firm said it hopes the lawsuit eventually includes all
50 states.
Faegre Baker Daniels, is representing Hormel.[GN]
INTUIT INC: Court Enters Summary Judgment in "Myers" Labor Suit
---------------------------------------------------------------
In the case, DARCI MYERS, an individual, on behalf of herself and
on behalf of others similarly situated, Plaintiff, v. INTUIT,
INC., a Delaware corporation, Defendant, Case No. 17cv1228-WQH-
BLM (S.D. Cal.), Judge William Q. Hayes of the U.S. District
Court for the Southern District of California granted the
Defendant's Motion for Summary Judgment and denied Myers' Motion
for Leave to File an Amended Complaint.
On June 16, 2017, Myers initiated the action by filing the
Complaint against Intuit. On Oct. 17, 2017, she filed an Amended
Collective and Class Action Complaint ("FAC"), the operative
complaint in the litigation, bringing various causes of action
against Intuit, her former employer. Myers alleges that Intuit
sets aside a portion of its base payroll to fund its 'Spotlight
Program' under which Intuit awards its employees bonuses for
various actions, such as good performance and longevity of
service. She alleges that Intuit fails to re-factor these
bonuses into its employees' 'regular rate' of pay for purposes of
calculating overtime in violation of state and federal law.
Myers alleges that by excluding a portion of its base payroll
from the regular rate under the guise of its 'Spotlight Program'
or 'Spotlight Bonuses,' Intuit effectively pays employees a
reduced overtime rate and lessens its overtime obligation.
Myers brings the following causes of action against Intuit: (1)
failure to pay overtime under the Fair Labor Standards Act
("FLSA") on behalf of herself and collectively on behalf of the
collective action group; (2) failure to pay overtime under state
law on behalf of herself and the California class; (3) failure to
provide accurate itemized wage statements on behalf of herself
and the California class; (4) failure to pay all wages when due
on behalf of herself and the California class; (5) violation of
California's Unfair Competition Law ("UCL") on behalf of herself
and the California class; and (6) a cause of action pursuant to
California's Private Attorney General Act ("PAGA") on behalf of
herself and the California class for violations of the California
Labor Code.
Myers alleges that the Court properly has subject matter
jurisdiction over the FLSA claims and supplemental jurisdiction
over the remaining state law claims because the claims are so
closely related to her federal claims that they form part of the
same case or controversy under Article III of the United States
Constitution.
On Jan. 22, 2018, Intuit filed a motion for summary judgment
requesting that the Court dismisses the individual claims with
prejudice and the class/collective and representative claims
without prejudice for lack of standing and on judicial estoppel
grounds.
On Feb. 13, 2018, Myers filed a response in opposition to the
motion for summary judgment. She does not dispute that she lacks
standing to pursue her individual or the class claims but asserts
that she maintains standing to pursue a PAGA representative
action.
On Feb. 14, 2018, Myers filed a motion for leave to file an
amended complaint. She seeks to substitute Wade Shumway as the
class representative for the collective FLSA claims, the
California Labor Code claims, and representative PAGA claims, to
add rounding claims, and to dismiss Myers as a representative of
the collective and class claims while leaving her as a PAGA
representative.
On Feb. 16, 2018, Intuit filed a reply in support of the motion
for summary judgment. On March 12, 2018, it filed a response in
opposition to the motion for leave to file an amended complaint.
Intuit contends that this Court lacks subject matter jurisdiction
to allow any leave to amend and that the motion fails under
Federal Rule Civil Procedure 15 and 16.
On March 19, 2018, Myers filed a reply in support of the motion
for leave to file an amended complaint.
On June 29, 2017, Myers and her husband filed a Voluntary
Petition for Bankruptcy under Chapter 7 of the United States
Bankruptcy Code in the U.S. Bankruptcy Court for the Southern
District of California. On Schedule A/B to her Petition, Myers
indicated "No" in response to the following question: (i) other
amounts someone owes her, (ii) claims against third parties,
whether or not she has filed a lawsuit or made a demand for
payment; and (iii) other contingent and unliquidated claims of
every nature.
On Sept. 26, 2017, the Bankruptcy Court issued an order
discharging Myers' debts. The discharge order entered by the
Bankruptcy Court was based on the schedules submitted by Myers
which did not disclose her interests in the action. On Feb. 1,
2018, the Bankruptcy Court reopened Myers' case on a motion by
Intuit so that a Chapter 7 Trustee may be appointed to administer
unscheduled assets.
Judge Hayes finds that Myers lacks standing to bring her
individual, the class, and the collective claims because her
interests in these claims became the property of the bankruptcy
estate as of the date she filed her Petition, which failed to
disclose these claims. Accordingly, Myers' causes of action for
(1) failure to pay overtime under the FLSA; (2) failure to pay
overtime under state law; (3) failure to provide accurate
itemized wage statements under state law; (4) failure to timely
pay wages under state law; and (5) violation of California's UCL
are dismissed. To the extent they are brought in an individual
capacity, these claims will be dismissed with prejudice. To the
extent they are brought in a class or collective capacity, these
claims will be dismissed without prejudice.
Myers' remaining cause of action against Intuit arises under
California's PAGA for violations of various sections of the
California Labor Code. In the case, the Court has dismissed the
FLSA claim on prudential standing grounds. The FLSA cause of
action is the only federal cause of action asserted by Myers.
The PAGA cause of action, which arises under state law, is the
sole remaining claim in this litigation. Having dismissed the
only federal claim asserted by Myers against Intuit for lack of
standing, the Judge declines to exercise supplemental
jurisdiction over the remaining state law PAGA claim pursuant to
28 U.S.C.
Finally, as to Myers' Motion for Leave to File an Amended
Complaint, the Judge finds that no class has been certified in
the case. Myers has not filed a motion for class certification
and the Dec. 15, 2017 deadline to file a motion for class
certification has passed. Her argument is not persuasive under
the facts of the case where no class has been certified and Myers
lacked prudential standing to bring claims prior to filing the
operative complaint in the action. Hence, Shumway maintains the
right to assert his individual, the class/collective, and the
representative claims in a new action. However, Myers fails to
demonstrate good cause for her belated motion to amend and for
any modification to the scheduling order.
For these reasons, Judge Hayes granted the Defendant's Motion for
Summary Judgment. He dismissed the FAC in its entirety. To the
extent the causes of action for failure to pay overtime under the
FLSA; failure to pay overtime under state law; failure to provide
accurate itemized wage statements under state law; failure to
timely pay wages under state law; and violation of California's
UCL are brought in the individual capacity, the Judge dismissed
them with prejudice. The FAC is otherwise dismissed without
prejudice.
Further, he denied Myers' Motion for Leave to File an Amended
Complaint.
A full-text copy of the Court's May 18, 2018 Order is available
at https://is.gd/WSX40T from Leagle.com.
Darci Myers, an individual, on behalf of herself, and on behalf
of others similarly situated, Plaintiff, represented by Alex M.
Tomasevic -- atomasevic@nicholaslaw.org -- Nicholas and Tomasevic
LLP, Craig McKenzie Nicholas -- cnicholas@nicholaslaw.org --
Nicholas and Tomasevic, Noam Glick -- noam@glicklawgroup.com --
Glick Law Group, P.C. & Shaun A. Markley --
smarkley@nicholaslaw.org -- Nicholas & Tomasevic LLP.
Intuit, Inc., a Delaware corporation, Defendant, represented by
Joshua D. Levine -- jdlevine@littler.com -- Littler Mendelson,
Julie A. Dunne -- jdunne@littler.com -- LITTLER MENDELSON & Ruth
Dapper -- rdapper@littler.com -- Littler Mendelson.
KAWASAKI MOTORS: Faces "Duncan" Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Kawasaki Motors
Corp., U.S.A. The case is styled as Eugene Duncan, on behalf of
himself and all others similarly situated, Plaintiff v. Kawasaki
Motors Corp., U.S.A., Defendant, Case No. 1:18-cv-06140 (S.D.
N.Y., July 6, 2018).
Kawasaki Motors Corp., U.S.A. engages in marketing and
distributing motorcycles, sport bikes, side X side vehicles,
cruisers, and watercraft. It also distributes gasoline engines
and professional handheld power products for landscape,
industrial, and consumer markets. In addition, the company sells
vehicle accessories, apparel, gifts and collectibles, and
maintenance products. It offers its products through dealers in
the United States and internationally. Kawasaki Motors Corp.,
U.S.A. was formerly known as American Kawasaki Motorcycle Corp.
and changed its name to Kawasaki Motors Corp., U.S.A. in
1968.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
LABOR READY: Final Approval of "Allen" Settlement Affirmed
-------------------------------------------------------------
In the case, MARGIE BEDOLLA; et al., Objectors-Appellants, v.
JEFFREY LEE ALLEN, on behalf of himself, all others similarly
situated, the general public and as an "aggrieved employee" under
the California Labor Code Private Attorneys General Act,
Plaintiff-Appellee, LABOR READY SOUTHWEST, INC., a Washington
corporation doing business in the State of California; DOES, 1-
50, inclusive, Defendants-Appellees, Case No. 16-56621 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed
the district court's September 2016 order granting final approval
to a settlement resolving Jeffrey Lee Allen's class-action wage
and hour claims against Labor Ready.
Objecting settlement-class members Margie Bedolla, Anthony Allen,
and Michael Alvarez appeal from the district court's final
approval.
On remand, the district court conducted a "more searching
inquiry" as the Appellate Court ordered in 2015. It is true that
the 2016 settlement agreement contains the same three "subtle
signs" of collusion as the 2013 settlement agreement. But this
time, the district court's final approval order and the
transcripts of the four approval hearings the court held before
granting final approval, provide adequate assurance that the
district court verified the fairness of the settlement agreement
notwithstanding those three red flags.
Accordingly, the Appellate Court finds that the district court
followed its instruction to conduct a "more searching inquiry"
into the substantive fairness of the settlement agreement, and
has shown it has explored comprehensively all factors, and has
given a reasoned response to all non-frivolous objections.
The Court also finds that the district court did not abuse its
discretion in finding that the settlement is fair, adequate, and
reasonable. The district court properly concluded that the
settlement as a whole provides value to the class.
The Objectors have not argued that the district court applied the
wrong law or relied on an unreasonable finding of fact in
granting final approval to the settlement with Mr. Allen and his
counsel as adequate class representatives. Particularly
considering its six years of experience with these parties, the
Appellate Court holds that the district court did not abuse its
discretion in doing so.
For these reasons, the Appellate Court affirmed.
A full-text copy of the Ninth Circuit's May 18, 2018 Memorandum
is available at https://is.gd/fYDviW from Leagle.com.
LE CREUSET: Faces "Kiler" Suit in E.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Le Creuset of
America, Inc. The case is styled as Marion Kiler, individually
and as the representative of a class of similarly situated
persons, Plaintiff v. Le Creuset of America, Inc., Defendant,
Case No. 1:18-cv-03949 (E.D. N.Y., July 10, 2018).
Le Creuset Of America, Inc. manufactures enamelled cast iron
cookware. Its products include round ovens, oval ovens and soup
pots, buffet casseroles and saucepans, pans and skillets, grills,
roasters and specialty items, garden collection, trivets and
sets, and accessories, as well as kitchen tools and gadgets,
stockpots, tea kettles, and brewers. The company also provides
lever models and corkscrews, wine accessories, and barware. Its
products are used by chefs and restaurateurs. The company was
founded in 1974 and is based in Early Branch, South Carolina. Le
Creuset Of America, Inc. operates as a subsidiary of Le Creuset
S.A.S.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11217
Tel: (917) 373-9128
Fax: (718) 504-7555
Email: shakedlawgroup@gmail.com
LIVE NATION: Court Compels Arbitration in "Himber" Suit
-------------------------------------------------------
The United States District Court for the Eastern District of New
York granted Defendant's Motion to Compel Arbitration in the case
captioned DAVID HIMBER, Individually and on behalf of a class,
Plaintiff, v. LIVE NATION WORLDWIDE, INC., and LIVE NATION
MARKETING, INC., Defendants, No. 16-CV-5001 (JS) (GRB)(E.D.N.Y.).
Plaintiff David Himber (Himber) brings this putative class action
against defendants Live Nation Worldwide, Inc. and Live Nation
Marketing, Inc. (Live Nation) for alleged violations of New York
General Business Law (GBL). The Plaintiff claims that Live
Nation's policy and practice of advertising one price for a
ticket on the website (here, $49.50), and then charging a higher
price to people arriving at the box office (here, $55.50)
constitutes false advertising and a deceptive practice in
violation of GBL Sections 349 and 350.
To the extent that Himber argues that the dispute and his claims
do not fall within the scope of the arbitration provision, the
parties disagree whether that issue is to be determined by the
Court or by an arbitrator. Live Nation argues that the issue must
be determined by an arbitrator, whereas Himber argues that the
determination is for the Court.
The Court agrees with Live Nation that the Terms of Use set forth
the parties' agreement that an arbitrator will determine whether
this dispute is within the scope of the arbitration provision. In
this respect, the parties agreed that the arbitrator, and not any
federal, state or local court or agency, will have exclusive
authority to the extent permitted by law to resolve all disputes
arising out of or relating to the interpretation, applicability,
enforceability or formation of this Agreement. This express
contractual provision clearly and unmistakably demonstrates the
parties' intent to delegate the question of arbitrability to the
arbitrator.
Accordingly, the Court grants Live Nation's motion to compel
individual arbitration and to stay the action pending
arbitration.
A full-text copy of the District Court's May 21, 2018 Memorandum
and Order is available at https://tinyurl.com/yacuxsmd from
Leagle.com.
David Himber, on behalf of plaintiff and a class, Plaintiff,
represented by Abraham Kleinman, Kleinman, LLC, Dan Edelman,
Edelman, Combs, Latturner & Goodwin, LLC, pro hac vice & Tiffany
N. Hardy, Edelman Combs Latturner & Goodwin LLC.
Live Nation Worldwide, Inc. & Live Nation Marketing, Inc.,
Defendants, represented by Daniel M. Wall -- dan.wall@lw.com --
Latham & Watkins LLP, pro hac vice & Lawrence Edward Buterman --
lawrence.buterman@lw.com -- Latham & Watkins LLP.
M SHANKEN: Faces "Sullivan" Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against M. Shanken
Communications, Inc. The case is styled as Phillip Sullivan, Jr.,
on behalf of himself and all others similarly situated, Plaintiff
v. M. Shanken Communications, Inc., Defendant, Case No. 1:18-cv-
06243 (S.D. N.Y., July 10, 2018).
M. Shanken Communications, Inc. publishes magazines and
newsletters covering the beverage and lifestyle industries. Its
magazines provide wine tasting reports and buying guides, travel
and fine dining features, chefs' menus, and personality profiles
to illuminate and educate wine lovers and epicureans,
connoisseurs and collectors, and business leaders.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
MCA FINANCIAL: Faces "Garcia" Suit in D. Arizona
------------------------------------------------
A class action lawsuit has been filed against MCA Financial Group
Limited. The case is styled as Jose Garcia, Mark Wilburn, Jose
Luis Vazquez, Jose Caballero, Americo Fuentes, Francisco
Martinez-Villareal, Jose Mejia, Kenneth Powell, Rosa Ramirez,
Alex Santos, Dulce Santos, James Stephens, Aaron Dunning, Albert
Foks, Gabriel Strasser, Larry Burt, Jeffrey Casady, Albert
Dennis, Wlodzimierz Debski, Ivan Diaz, Ramon Diaz, Melissa
Earley, Randal Morton Hooper, General Lee Mckinney, Michael Kee,
Ed Krapf, Jordan O'Donnell, Marselo Rodriguez, Chet Painter,
William Shelton, Mark Wilburn and Michael Willin, on behalf of
himself and all other persons similarly situated, Plaintiffs v.
MCA Financial Group Limited, Defendant, Case No. 2:18-mc-00042-
DJH (D. Ariz., July 6, 2018).
MCA Financial Group provides businesses help with Turnaround &
Restructuring, Litigation Support, Mergers & Acquisition and
Valuation Services. BN]
The Plaintiff is represented by:
Robert Henry Ford, Esq.
Fogler Brar Ford ONeil & Gray LLP
909 Fannin St., Ste. 1640
Houston, TX 77010
Tel: (713) 481-1010
Fax: (713) 574-3224
Email: rford@fbfog.com
MICROSOFT CORP: Judge Throws Out Class Action Petition in Lawsuit
-----------------------------------------------------------------
Aaron Kunkler, writing for Redmond Reporter, reports that a
federal judge has struck down a request from the attorneys
representing three women seeking a class-action lawsuit against
Microsoft for alleged discrimination.
The sealed order came from U.S. District Judge James L. Robart on
June 25, which barred the lawsuit form proceeding as a class
action lawsuit, which would have encompassed more than 8,600
female employees. The original lawsuit was filed in the Western
District of Washington federal court on behalf of three female
plaintiffs who are all current or former employees of the
Redmond-based tech giant.
The plaintiffs are represented by Leiff Cabraser Heimann &
Bernstein, LLP, who had not returned a request for comment at the
time of publication.
For its part, a Microsoft spokesperson issued a short statement
in an email that read: "We remain committed to increasing
diversity and making sure that Microsoft is a workplace where
everyone has an equal opportunity to succeed. The judge made the
right decision that this case should not be a class action."
However, court documents allege a pattern of discrimination
against female employees in technical and engineering roles at
Microsoft. They are centered around allegations of unfair
treatment in performance valuations, pay and promotions in
addition to sexual harassment and an unresponsive human resources
division. The complaint alleges that women retaliate against
female employees who complain about discrimination and that women
receive less compensation than their male counterparts due to a
lack of equitable promotions.
Through 2013, the lawsuit said Microsoft used a "stack ranking"
system to evaluate employee performance. It ranked employees from
1 through 5 with 1 being the best score. The lawsuit alleges this
system undervalued women employees, leading to less promotions
and raises during the bi-annual rankings. The lawsuit alleges
women tended to receive lower scores than their male peers
despite having equal or better performance during the same
period.
Pay at Microsoft is largely based on a tiered system, where the
higher an employee climbs based on promotions, the more they
earn.
"Overall, Microsoft promotes an overwhelmingly disproportionate
number of men, and passes over equally or more qualified women,"
the lawsuit read.
The original lawsuit sought a class action lawsuit and a trial by
jury. The claims were amended earlier this year with more
information, including an estimate that women over a four year
period ending in 2016 in engineering and IT jobs had been
underpaid by between $100 to $238 million.
More than 500 fewer promotions were given to women than men with
the same characteristics and more than 230 human resources
complaints alleging gender discrimination, sexual harassment and
retaliation were filed, the lawsuit read. Of some 118 complaints
filed dealing with gender discrimination, Microsoft's human
resources department concluded that only one was founded, the
lawsuit alleges.
It additionally described a "boy's club" corporate culture where
women were called slurs, groped frequently and harassed.
The lawsuit sought a halt to discrimination and harassment, the
institution of policies that provide equal opportunities for all
employees and an order that Microsoft pay restitution and
additional penalties for damages.[GN]
MIDLAND CREDIT: Court Dismisses "Torres" FDCPA Suit
---------------------------------------------------
The United States District Court for the Eastern District of New
York granted Defendant's Motion to Dismiss the case captioned
NURIA TORRES, Individually and on behalf EASTERN DISTRICT OF NEW
YORK of all others similarly situated, Plaintiff, v. MIDLAND
CREDIT MANAGEMENT, INC., Defendant, No. 17-cv-2794 (SJF)(ARL)
(E.D.N.Y.).
The Plaintiff incurred a debt on an account with Verizon New
York, Inc. As part of its efforts to collect this debt, the
Defendant sent the Plaintiff a letter (Collection Letter), which
identifies Verizon New York, Inc., as the entity to whom the debt
is owed and sets forth a Balance Due of $759.18.
The Defendant asserts that because the Settlement Letter was sent
prior to the expiration of the statute of limitations to collect
on the Account, the Plaintiff fails to state a claim under the
FDCPA. Alternatively, the Defendant asserts that (1) even if the
two-year statute of limitations was applicable, 23 N.Y.C.R.R.
Section 1.3 does not provide for a private cause of action and
(2) because a debt collector does not violate the FDCPA by simply
requesting repayment, as long as there is no threat of litigation
no violation occurred here since the Settlement Letter makes no
threats related to litigation.
The Plaintiff states that the term lawful charges' as used in 47
U.S.C. Section 415(a) is plain and unambiguous and, therefore,
should be accorded its ordinary meaning and that upon making such
a finding the Court's inquiry should end there.
The Plaintiff clarifies that she is not asserting a cause of
action alleging a violation of 23 NYCRR Section 1.3 and that
reference to this regulation was intended to do nothing more than
illustrate the ways in which the Defendant could have articulated
the requisite disclaimers so as to render the Letter neither
false nor misleading to the least sophisticated consumer.
The fundamental question at issue is whether the two year statute
of limitations as contained in 47 U.S.C. Section 415(a) or the
six-year statute of limitation as contained in N.Y.C.P.L.R.
Section 213 applies to the collection of the Plaintiff's debt.
47 U.S.C. Section 415(a) reads as follows: All actions at law by
carriers for recovery of their lawful charges, or any part
thereof, shall be begun within two years from the time the cause
of action accrues, and not after.
Notwithstanding the searching inquiry generally necessary when
facing questions of pre-emption, and recognizing the dearth of
Second Circuit authority addressing the precise issue involved
here, the Court finds persuasive the reasoning and analysis set
forth in Castro v. Collecto, Inc., 668 F. Supp. 2d. 950 (W.D. Tx.
2009) (Castro I) and Castro v. Collecto, Inc., 634 F.3d 779
(2011) (Castro II).
The Castro litigation, similar to the instant action, involved
determining the applicable statute of limitations for a mobile
telephone debt. While Castro advocated application of the two-
year statute of limitations in 47 U.S.C. Section 415(a),
defendant claimed that Texas' four-year statute of limitations
applied. Both the lower court as well as the Fifth Circuit
conducted the requisite pre-emption analysis and ultimately
concluded that Congress had not manifestly intended to preempt
the use of Texas' four-year statute of limitations applicable to
the collection of debts making defendant's collection efforts
timely invoked.
The Fifth Circuit in Castro II also began its analysis with a
review of the Federal Communications Act (FCA)'s history and
structure. The court recognized that under the initial statutory
scheme the term lawful charges was practically interchangeable
with the term tariffed charges, because the only charges that any
phone company could lawfully collect were those that had been
filed with the Federal Communications Commission (FCC).
In addition to the reasoning set forth in Castro I and Castro II,
also persuasive is the State Pre-emption language set forth in 47
U.S.C. Section 332(c)(3). This language, included as part of the
1993 amendments to the FCA, states, in relevant part, that
Notwithstanding sections 152(b) and 221(b) of this title, no
State or local government shall have any authority to regulate
the entry of or the rates charged by any commercial mobile
service or any private mobile service, except that this paragraph
shall not prohibit a State from regulating the other terms and
conditions of commercial mobile services.
Having thoroughly reviewed both Castro I and Castro II in
conjunction with relevant sections of the FCA and based upon the
lack of binding authority in the Second Circuit addressing the
question, the Court adopts the reasoning and result reached by
the Fifth Circuit in Castro II and similarly finds that Congress
has not manifestly intended the two-year statute of limitations
contained in 47 U.S.C. Section 415(a) to pre-empt New York's six-
year statute of limitations governing state actions concerning
the collection of a debt arising from a contractual obligation.
Therefore, the Plaintiff's FDCPA claims, which are all premised
upon the theory that the Collection Letter was sent after the
two-year statute of limitations set forth in 47 U.S.C. Section
415(a) had expired, fail as a matter of law.
Accordingly, the Defendant's motion to dismiss the Complaint for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is
granted.
A full-text copy of the District Court's May 21, 2018 Memorandum
and Decision is available at https://tinyurl.com/yb24l2wb from
Leagle.com.
Nuria Torres, individually and on behalf of all others similarly
situated, Plaintiff, represented by Craig B. Sanders, Barshay
Sanders, PLLC & David M. Barshay, Sanders Law, PLLC.
Midland Credit Management, Inc., Defendant, represented by Han
Sheng Beh -- hbeh@hinshawlaw.com -- Hinshaw & Culbertson LLP &
Ellen Beth Silverman -- esilverman@hinshawlaw.com -- Hinshaw &
Cullertson.
MRS BPO: Faces "Paracha" Suit in E.D. New York
----------------------------------------------
A class action lawsuit has been filed against MRS BPO, L.L.C. The
case is styled as Imran A. Paracha, on behalf of himself and all
others similarly situated, Plaintiff v. MRS BPO, L.L.C.,
Defendant, Case No. 2:18-cv-03892 (E.D. N.Y., July 6, 2018).
MRS BPO, LLC, a debt collection agency, provides accounts
receivables solutions. It offers first and third party
collections services that include skip tracing, letters, human
interaction, scoring, and credit reporting; and analytic
solutions that include effective scoring and regression analysis,
voice analytics, identifying manual processes that can be
automated, and increasing customer retention levels. The company
also provides back office management services that include
medical/healthcare, data entry, and inbound/outbound call center;
and customer relationship management services.[BN]
The Plaintiff appears PRO SE.
MLB ADVANCED: Faces "Duncan" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against MLB Advanced Media,
L.P. The case is styled as Brenda Eugene Duncan, on behalf of
himself and all others similarly situated, Plaintiff v. MLB
Advanced Media, L.P. doing business as: Yankee Stadium,
Defendant, Case No. 1:18-cv-06138-AT (S.D. N.Y., July 6, 2018).
MLB Advanced Media is a limited partnership of the club owners of
Major League Baseball based in New York City and is the Internet
and interactive branch of the league.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
MURRAY GOULBURN: IMF Bentham Class Action Funding Unconditional
---------------------------------------------------------------
Rachael Jones, writing for Finance News Network, reports that MF
Bentham (ASX:IMF) has announced that the funding of the Murray
Goulburn unitholder class action is now unconditional.
The litigation funder is proceeding with its class action against
milk supplier Murray Goulburn and subsidiary MG Responsible
Entity.
The proposed claim will allege that the Murray Goulburn entities
misled investors by issuing the FY16 profit forecast, without a
reasonable basis.
Investors who purchased units in the MG Unit Trust issued by MG
Responsible Entity between 29 May 2015 to 26 April 2016
(inclusive) are eligible to participate in the class action.
IMF is continuing to take registrations from anyone eligible.
NATIONSTAR MORTGAGE: 9th Cir. Affirms "Vanamann" Summary Judgment
---------------------------------------------------------------
In the case, KIM VANAMANN, Plaintiff-Appellant, v. NATIONSTAR
MORTGAGE, LLC, Defendant-Appellee, Case No. 17-15737 (9th Cir.),
the U.S. Court of Appeals for the Ninth Circuit affirmed the
district court's order granting Nationstar's motion for summary
judgment.
Vanamann brought the putative class action against Nationstar, a
mortgage servicer. She claims that Nationstar violated the Fair
Credit Reporting Act ("FCRA") by checking her credit without a
permissible purpose. Discovery revealed that Nationstar checked
Vanamann's credit multiple times after a bankruptcy court had
discharged her mortgage debt. The district court granted
Nationstar's motion for summary judgment.
The Court finds that Vanamann has established Article III
standing. Neither party contested standing. The Court issued an
order asking the parties to address the issue in light of a
recent Supreme Court decision concerning standing under the FCRA,
Spokeo, Inc. v. Robins, and its cases applying it.
Vanamann submitted a declaration to the district court stating
that Nationstar violated her privacy when it obtained her credit
information and credit scores after she had received a discharge
in bankruptcy. Vanamann also reopened her bankruptcy case to
seek contempt sanctions against Nationstar. She alleged that
Nationstar continued to send her monthly billing statements after
she left the home, her debt was discharged, the home was sold,
and her name was taken off of the title. Vanamann claimed severe
emotional distress. The bankruptcy court awarded her actual
damages, punitive damages, and attorneys' fees.
In this case, Nationstar admitted that it obtains credit
information to initiate contact with consumers for such
collections purposes. Given the circumstances, the Court is
satisfied that Vanamann has standing.
The Court further finds that Vanamann's FCRA claim fails as a
matter of law. Because she sought statutory and punitive damages
rather than compensatory damages, Vanamann must establish that
Nationstar "willfully" violated the Act. 15 U.S.C. Section
1681n(a). Assuming that Nationstar lacked a permissible purpose
for checking her credit, Vanamann has not met the standard for
obtaining statutory and punitive damages rather than compensatory
damages.
For these reasons, the Appellate Court affirmed.
A full-text copy of the Ninth Circuit's May 18, 2018 Memorandum
is available at https://is.gd/QoWBu7 from Leagle.com.
NEBRASKA: State High Ct. Renders "Nesbitt" Dismissal Appeal Moot
----------------------------------------------------------------
In the case, THOMAS NESBITT, ON BEHALF OF HIMSELF AND ALL OTHER
SIMILARLY SITUATED NEBRASKA STATE PENITENTIARY SEGREGATED
PRISONERS, Appellant, v. SCOTT FRAKES ET AL., Appellees, Case No.
S-16-931 (Neb.), the Supreme Court of Nebraska dismissed
Nesbitt's appeal from an order dismissing his amended complaint
for failing to state a cause of action.
Nesbitt brought suit against the Nebraska Department of
Correctional Services ("DCS"), its director, and various other
officials and employees of the DCS, alleging that the conditions
at the Nebraska State Penitentiary ("NSP") violate his rights
under Nebraska law and that his claims are representative of all
inmates housed in the segregation units at the NSP.
Nesbitt is an inmate with the DCS. At the time he filed his pro
se complaint for class action, declaratory, and injunctive
relief, he resided in a segregated unit at the NSP, located in
Lincoln, Nebraska. His complaint asserted state law claims based
on a range of matters within the correctional facility's setting,
including overcrowding, cell assignments, flooding, and
inadequate showering conditions.
Nesbitt, age 71, claims he suffers from a debilitating spinal
condition which causes him sciatic nerve pain and restless leg
syndrome. He claims, according to his medical diagnosis, he is
required to sleep from 2 a.m. to 10 a.m. every day in order to
prevent paralysis. He asserts prison officials violate his
rights when they allow the prison to become overpopulated and, as
a result, place another prisoner in his medically designed one-
man segregation single-cell, which disturbs his circadian rhythm.
Nesbitt's complaint named as the Defendants the Appellees, eight
officials and employees with the DCS, in both their official and
individual capacities, but he served the appellees in their
individual capacities only. His praecipe for issuance and
service of summons requested service at the DCS and the NSP, and
not at the Attorney General's office.
The district court dismissed Nesbitt's original complaint,
finding that the Appellees had been served in only their
individual capacities and that the complaint failed to state a
claim for relief against any of the Appellees personally. It
denied Nesbitt's request for class action status and motion for
restraining order.
Nesbitt filed an amended verified complaint, in which he included
additional claims related to prison conditions. He sought
temporary and permanent injunctive relief and declaratory
judgment -- the same relief requested in his initial complaint.
The Appellees filed another motion to dismiss, and the court
again dismissed the complaint under Section 6-1112(b)(6), noting
that the new pleading had the same defects as the original and
that no further opportunity to amend should be permitted.
Nesbitt filed a motion to alter or amend the court's judgment, in
which he stated that he had been transferred to the Omaha
Correctional Center located in Omaha, Nebraska. He confirmed
this fact at the hearing on his motion, which motion the court
overruled. Nesbitt timely appealed.
Nesbitt assigns that the court erred in (1) denying his verified
complaint; (2) failing to properly evaluate his claims under the
notice pleading system; and (3) refusing to (a) certify the class
members, (b) appoint legal counsel, and (c) issue a restraining
order and temporary injunction.
The Appellees assert that Nesbitt's claims seeking injunctive
relief and declaratory judgment are moot, because he has been
transferred to a different correctional facility. Thus, the
State Supreme Court determines whether Nesbitt's transfer to a
different facility has rendered the appeal moot.
It concludes that Nesbitt's claims for injunctive relief and
declaratory judgment are moot, as he is no longer subject to the
housing conditions of which he complains. Regarding his claim
for certification of a class action, because his underlying
claims are moot and have been dismissed, Nesbitt lacks
commonality with members of the purported class on whose behalf
he sought to litigate similar claims.
And in regard to his argument that he has stated claim upon which
relief may be granted if tested under lenient pleading standards,
the Court declines to reach the issue, as it is not necessary to
adjudicate this dispute. Accordingly, it rendered the appeal
moot.
A full-text copy of the state Supreme Court's May 18, 2018 Order
is available at https://is.gd/yDgwqR from Leagle.com.
Thomas Nesbitt, pro se.
Douglas J. Peterson, Attorney General, and Timothy R. Ertz --
timothy.ertz@nebraska.gov -- for appellee.
NEW YORK COMMUNITY: Faces "Duncan" Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against New York Community
Bancorp, Inc. The case is styled as Eugene Duncan, on behalf of
himself and all others similarly situated, Plaintiff v. New York
Community Bancorp, Inc., Defendant, Case No. 1:18-cv-06135-PAC
(S.D. N.Y., July 6, 2018).
New York Community Bancorp, Inc. is a bank headquartered in
Westbury, New York, with 225 branches in New York, New Jersey,
Ohio, Florida, and Arizona. NYCB is on the list of largest banks
in the United States.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
NEW ZEALAND: Kiwifruit Class Action Lawsuit Succeeds
----------------------------------------------------
Law Fuel reports that the class action lawsuit brought against
the NZ Government, the largest such civil action lawsuit in New
Zealand history, has succeeded in finding the Government was
negligent in permitting the introduction of PSA, which devastated
the country's kiwifruit crop.
The legal action, funded by the LPF Group, resulted in the court
decision.
The media release regarding the decision is as follows:
A landmark decision released by the High Court has found that the
Ministry of Primary Industries (formally MAF) was negligent in
allowing the deadly PSA disease into New Zealand in 2009, which
devastated the kiwifruit industry.
Kiwifruit Claim Chairman John Cameron said that it was also
hugely significant for the kiwifruit industry and other primary
industries that the Court also established that MPI owed a duty
of care to kiwifruit growers when carrying out its biosecurity
functions.
"We completely agree with the Judge when she says that the wrong
to the 212 kiwifruit growers should be remedied.
"We've waited a long time for this day, and we are absolutely
thrilled that the Court has held that MPI owed a duty of care and
breached that duty when it allowed PSA to enter New Zealand in
2009".
"We hope that this significant decision draws a line in the sand
for what has been a long and difficult 8 years for growers who
could not have brought this action without the support of LPF
Group.
"Biosecurity is critical to New Zealand, and our primary
producers and economy are heavily reliant on MPI to protect our
borders against known biosecurity risks such as PSA.
"The Kiwifruit industry alone is worth around $1.67 billion a
year to the New Zealand economy, and MPI is the only agency in
the country with the mandate to manage biosecurity risks.
"MPI knew for many years that PSA was a significant risk to the
kiwifruit industry, and if it had done its job properly and
followed its own regulations and protocols under the Biosecurity
Act, the PSA incursion would not have happened.
"PSA decimated the kiwifruit industry and its impact was far
reaching, not only on growers and their individual orchards, but
on the New Zealand economy.
"We've had to fight a really hard and expensive battle to get
this decision. Some growers lost everything when PSA hit, their
orchards and businesses, their life savings, and for many, the
financial and emotional impact is ongoing.
"Even for those that were able to survive, some suffered a
complete loss of income for several years, taking on huge debts
to replant their orchards. Kiwifruit growers continue to suffer
the effects of PSA eight years on.
"We hope that the Government accepts the Judge's decision and
that kiwifruit claim growers can finally be properly compensated
for their losses. We look forward to working cooperatively with
the Government to achieve this.
"We would like to acknowledge the hard work from our legal team
and the enormous commitment, support and assistance provided by
litigation funders, LPF Group, who have enabled this case to
proceed, says Mr Cameron.[GN]
NRI USA: Loses Bid to Dismiss State Law Claims in "Garcia"
----------------------------------------------------------
The United States District Court for the Central District of
California denied Plaintiffs' Motion to Dismiss the State Law
Claims in the case captioned ALEJANDRA GARCIA, Plaintiff, v. NRI
USA, LLC; DECTON INC.; DECTON SOUTHWEST INC.; DECTON HR INC.;
DECTON CORPORATE SERVICES INC.; DOES 1 through 50, Defendants,
Case No. 2:17-CV-08355-ODW-GJS (C.D. Cal.).
The Plaintiff began working for the Defendants in a warehouse
facility in Los Angeles, California. The Plaintiff filed a
complaint in Los Angeles Superior Court against NRI alleging
illegal payment policies and practices and seeking civil
penalties under California's Private Attorney General Act (PAGA).
The Plaintiff asserts two bases for the Court's subject-matter
jurisdiction. First, the Plaintiff alleges that the
jurisdictional requirements of the Class Action Fairness Act
(CAFA) are met because the proposed class numbers at least 100
persons, the Plaintiff is a citizen of a state different than at
least one of the Defendants, and the amount in controversy
exceeds $5,000,000. The Plaintiff also alleges that the Court
has original federal-question jurisdiction over the FLSA claim
pursuant to 28 U.S.C. Section 1331 and supplemental jurisdiction
over the state-law claims.
The Defendants argue that the Court does not have jurisdiction of
the state-law claims under CAFA, so the only remaining basis for
jurisdiction of the state-law claims is supplemental
jurisdiction.
The Court chooses to follow reasoning from the Seventh and D.C.
Circuits, which have both held that a court can exercise
supplemental jurisdiction over state-law wage-and-hour class
claims when original jurisdiction is present due to an FLSA claim
-- Ervin v. OS Restaurant Servs., Inc., 632 F.3d 971, 979 (7th
Cir. 2011); Lindsay v. Gov't Emp. Ins. Co., 448 F.3d 416, 423
(D.C. Cir. 2006).
All that is left to consider is whether the Court should exercise
its discretionary authority to dismiss pursuant to Section
1367(c). The Court finds that the state-law claims do not
predominate over the federal claim, that those claims do not
present novel or complex issues of state law, and that
exceptional circumstances warranting dismissal do not exist.
Therefore, the Court exercises jurisdiction over the Plaintiff's
state-law claims.
The Defendants argue that the Court should dismiss or stay this
case because the Plaintiff has improperly split her claims
between state and federal court. For this position, the
Defendants rely on Adams v. Cal. Dep't of Health Services, 487
F.3d 684 (9th Cir. 2007), in which the Ninth Circuit held that a
district court may exercise its discretion to dismiss a
duplicative later-filed action, to stay that action pending
resolution of the previously filed action, to enjoin the parties
from proceeding with it, or to consolidate both actions.
Other than citing Adams, which indicates that the actions must be
filed in the same court for the claim-splitting defense to apply,
the Defendants cite no Ninth Circuit precedent specifically
discussing whether a case may be dismissed on grounds of claim-
splitting when the parallel action is pending in state court.
In two unpublished decisions involving parallel state and federal
actions, the Ninth Circuit reversed district court dismissals
based on claim-splitting because both actions were not pending in
the same court. Because the Plaintiff's concurrent actions are
pending in state and federal court, dismissal on a claim-
splitting theory is not appropriate in this case.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/ydghzuab from Leagle.com.
Alejandra Garcia, individually and on behalf of others similarly
situated, Plaintiff, represented by Joshua D. Boxer --
jboxer@maternlawgroup.com -- Matern Law Group PC, Roy Karngwon
Suh -- rsuh@maternlawgroup.com -- Matern Law Group PC & Matthew
John Matern -- Mmatern@maternlawgroup.com -- Matern Law Group PC.
NRI USA, LLC, a California limited liability company, Decton
Inc., a California corporation, Decton Southwest Inc., a Nevada
corporation, Decton HR Inc., a California corporation & Decton
Corporate Services, Inc., a California corporation, Defendants,
represented by David George Hagopian --
dhagopian@cdlitigation.com -- Carothers DiSante and Freudenberger
LLP, Garrett Voorhees Jensen -- gjensen@cdflaborlaw.com --
Carothers DiSante and Freudenberger LLP & Jeffrey L. Sikkema --
jsikkema@cdflitigation.com -- Carothers DiSante and
Freudenberger LLP.
ORMAT TECHNOLOGIES: Aug. 8 Lead Plaintiff Bid Deadline
------------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of shareholders of the following companies.
If you suffered a loss you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
Ormat Technologies, Inc. (NYSE:ORA)
Lead Plaintiff Deadline: August 8, 2018
Class Period: August 8, 2017 and May 15, 2018
Get additional information: http://www.wongesq.com/pslra-c/ormat-
technologies-inc-2?wire=3 [GN]
OTB ACQUISITION: Faces "Duncan" Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against OTB Acquisition
LLC. The case is styled as Eugene Duncan, on behalf of himself
and all others similarly situated, Plaintiff v. OTB Acquisition
LLC doing business as: On The Border, Defendant, Case No. 1:18-
cv-06101-VSB (S.D. N.Y., July 5, 2018).
On The Border Mexican Grill & Cantina is a chain of Tex-Mex food
casual dining restaurants located in the United States, Puerto
Rico and South Korea. The chain and brand name is owned by OTB
Acquisition LLC.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
P.F. CHANG'S: Court Grants Prelim OK of $6.5MM "Pearson" Deal
-------------------------------------------------------------
The United States District Court for the Southern District of
California granted Plaintiffs' Unopposed Motion for Order
Granting Preliminary Approval of Class Action Settlement in the
case captioned JOY PEARSON, individually and on behalf of all
others similarly situated, Plaintiff, v. P.F. CHANG'S CHINA
BISTRO, INC., a Delaware corporation; and DOES 1 through 50,
inclusive, Defendants, Case No. 13-CV-2009 JLS (MDD)(S.D. Cal.).
Plaintiffs Linda Andrade, and Liliana Avila filed a class action
suit alleging violations of California's Labor and Business and
Profession Codes on behalf of all non-exempt employees of
Defendant P.F. Chang's China Bistro, Inc.
The Defendant proposes to pay a Maximum Settlement Fund of
$6,500,000.00. From this amount will be deducted: (a) all
Settlement payments to Class Members eligible for Settlement
payments; (b) the Class Representative incentive payment approved
by the Court; (c) Class Counsel's attorneys' fees and expenses
approved by the Court; (d) administration fees and expenses; and
(e) payment made to the State of California Labor Workforce and
Development Agency (LWDA).
Strength of Plaintiffs' Case
In order to succeed on the merits, the Plaintiffs would have to
prove that the Defendant's practices and policies were fraudulent
and that the Defendant failed to provide various wage statements
and pay. The Defendant denies any wrongdoing. The Plaintiffs,
however, estimate the Defendant's potential liability exposure on
the underlying Labor Code claims to be approximately
$13,033,200.00.
Given the disagreement between the Parties and neutral third-
party evaluation of the same, the Court thus finds that this
factor weighs in favor of the $6.5 million settlement being fair,
reasonable, and adequate.
Risk, Expense, Complexity, and Likely Duration of Further
Litigation
Were the case to proceed to further litigation rather than
settlement, the Parties would each bear substantial risk and a
strong likelihood of protracted and contentious litigation.
Additionally, the Parties document a number of risks in
litigating the Plaintiffs' claims including the fact that a class
might not even be certified, the Plaintiffs may lose at trial,
and the Defendant is likely to appeal any adverse orders or
judgment and thus argue that the present Settlement affords class
members at least some compensation where there might be none.
Indeed, the fact that the Defendant disputes all aspects of the
Plaintiffs' claims.
Given the foregoing, this factor weighs in favor the settlement
being fair, reasonable, and adequate.
Risk of Maintaining Class Action Status Throughout Trial
The Parties dispute whether the classes can be validly certified
in the absence of the Settlement Agreement. Implicit in this
disagreement is the likelihood of initial challenges to class
certification and the potential for decertification motions even
if class status is granted. Weighed against the fact that the
Defendant does not oppose a finding that the class elements are
met for purposes of this settlement, this factor also weighs in
favor of the settlement being fair, reasonable, and adequate.
Amount Offered in Settlement
The Defendant has agreed to pay $6.5 million to settle this
lawsuit. The crux of the Plaintiffs' claims is that the Defendant
failed to pay the Class Members the entirety of their earned
wages as well as failed to adhere to other wage-related policies.
The Plaintiffs calculate that the claims most likely to succeed
at trial are worth approximately $13 million. Thus, there has
already been some tangible benefit resulting from these lawsuits.
Accordingly, this factor weighs in favor of the settlement being
fair, reasonable, and adequate.
Extent of Discovery Completed and Stage of Proceedings
Prior to the agreed-upon settlement, the Parties engaged in
substantial discovery, including hundreds of written discovery
requests, responses and supplemental responses, and depositions.
The Parties engaged in substantial motion practice, including an
appeal to the Ninth Circuit in the Pearson action. Accordingly,
it appears the Parties have entered into the Settlement Agreement
with a strong working knowledge of the relevant facts, law, and
strengths and weaknesses of their claims and defenses. Given all
of the above, this factor weighs in favor of the proposed
settlement being fair, reasonable, and adequate.
Experience and Views of Counsel
In the present case the presumption of reasonableness is
warranted based on Class Counsel's expertise in complex
litigation, familiarity with the relevant facts and law, and
significant experience negotiating other class and collective
action settlements. Given the foregoing, and according the
appropriate weight to the judgment of these experienced counsel,
this factor weighs in favor the proposed settlement being fair,
reasonable, and adequate.
Settlement Attorneys' Fees Provision
In the Ninth Circuit, a district court has discretion to apply
either a lodestar method or a percentage-of-the-fund method in
calculating a class fee award in a common fund case.
In the present case, the Settlement Agreement specifies that the
Defendant will not oppose Class Counsel's request to the Court
for approval of attorneys' fees in the amount equal to one-third
(1/3) of the Maximum Settlement Amount ($2,166,66.67 out of
$6,500,000), and reasonable costs in an amount not to exceed
$100,000.
At this stage, the Court concludes that the provision is
reasonable.
Class Representative Service Award Provision
In the present case, the Settlement Agreement provides $2,500
each to Plaintiffs Joy Pearson, Linda Andrade, and Liliana Avila
and $1,000 each to Plaintiffs Hunter Kidner, Lizette Vargas,
Samantha Kidner, Madelene Geledzhyan, and Anissa Ramirez to be
paid from the Maximum Payment, in addition to the Settlement
payment they may otherwise receive as class members. This amount
is well within the typical incentive awards amount.
Given this, the Court concludes that the current Settlement
Agreement Class Representative Payment provision should not bar
preliminary approval of the Settlement Agreement.
Accordingly, the Court grants the Plaintiffs' Unopposed Motion
for Preliminary Approval of Class Settlement regarding the
Settlement Agreement.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/y74j5y5a from Leagle.com.
Joy Pearson, individually, and on behalf of all others similarly
situated, Plaintiff, represented by Erik Dos Santos --
edossantos@hoguebelonglaw.com -- Hogue & Belong, Jeffrey L. Hogue
-- jhogue@hoguebelonglaw.com -- Hogue & Belong & Tyler Jay
Belong, Hogue & Belong APC.
P.F. Chang's China Bistro, Inc., a Delaware corporation,
Defendant, represented by Evan Reed Moses --
evan.moses@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak
& Stewart P.C., John Spivey Battenfeld --
jbattenfeld@morganlewis.com -- Morgan Lewis and Bockius, Anna Kim
-- jee.kim@morganlewis.com -- Morgan, Lewis & Bockius LLP,
Caitlin V. May -- cmay@morganlewis.com -Morgan Lewis and Bockius
LLP, Kathy Hua Gao -- kgao@morganlewis.com -- Morgan, Lewis &
Bockius LLP & Theresa Mak -- Theresa.Mak@jacksonlewis.com --
Jackson Lewis P.C.
PACCAR INC: "Stampfli" Suit Remanded to Wis. State Court
--------------------------------------------------------
The United States District Court for the Western District of
Wisconsin granted Plaintiffs' Motion to Remand the case captioned
LANCE MICHAEL STAMPFLI, Plaintiff, v. PACCAR, INC. d/b/a KENWORTH
TRUCK COMPANY and WISCONSIN KENWORTH, LLC d/b/a WISCONSIN
KENWORTH, Defendants, No. 17-cv-751-wmc (W.D. Wis.) to the
Portage County Circuit Court.
Plaintiff Lance Michael Stampfli originally filed a complaint
against defendants PACCAR and Wisconsin Kenworth in the Portage
County Circuit Court for breach of warranty. The Plaintiff
alleges that the truck he purchased was manufactured or
distributed by PACCAR, a foreign business corporation licensed to
do business in the State of Wisconsin, with its principal place
of business in Bellevue, Washington.
PACCAR alleges that this court has jurisdiction over the dispute
based on the diversity of parties and the amount in controversy
exceeding $75,000. Specifically, PACCAR alleges that, Wisconsin
Kenworth's citizenship is irrelevant for diversity purposes and
should be disregarded because the plaintiff fraudulently joined
it as a party for the sole purpose of defeating diversity of
citizenship in this case.
Typically, fraudulent joinder involves a claim against an in-
state defendant that simply has no chance of success, regardless
of the plaintiff's motives.
In considering a claim of fraudulent joinder, the court may look
beyond the complaint. However, even this inquiry is strictly
circumscribed and limited to uncontroverted summary evidence
which establishes unmistakably that a diversity-defeating
defendant cannot possibly be liable to a plaintiff under
applicable state law. If doubt remains about the appropriateness
of removal, the case should be remanded. Notwithstanding
defendants' assertions to the contrary, this is such a case.
PACCAR asserts that Wisconsin Kenworth was fraudulently joined
because the plaintiff has no reasonable probability of success
against Wisconsin Kenworth for breach of express warranty. Having
reviewed the purchase contract and the warranties, however,
liability under the warranties would appear to flow jointly and
severally to either defendant and perhaps to Kenworth. Indeed,
given that Kenworth itself was not sued directly, the plaintiff's
sole remedy for the myriad, alleged truck defects subject to
warranty, as opposed to engine defects, would appear to be
against its authorized truck dealer, defendant Wisconsin
Kenworth, at least at this juncture in this lawsuit.
Parol evidence could be used to determine the parties' intentions
and resolve this ambiguity, however, that would go beyond this
court's limited review at the remand stage. Thus, the plaintiff
has a reasonable probability of recovering against Wisconsin
Kenworth. Indeed, as a practical matter, even if Kenworth is
ultimately liable to Wisconsin Kenworth to reimburse it for any
parts and service covered by the warranty, it is Wisconsin
Kenworth that will have the customer interaction and perform the
warranty work.
At most, by pointing out arguably inconsistent language in the
parties' purchase agreement, PACCAR has created some doubt as to
whether this express language means what it says, but that is not
enough to meet its heavy burden to establish fraudulent joinder.
A full-text copy of the District Court's May 21, 2018 Opinion and
Order is available at https://tinyurl.com/ya8z9q84 from
Leagle.com.
Lance Michael Stampfli, Plaintiff, represented by Gary L. Dreier
-- gary.dreier@bdjwislaw.com -- Buzza Dreier & Johnson, LLC.
Paccar, Inc., d/b/a Kenworth Truck Company & Wisconsin Kenworth
LLC, d/b/a Wisconsin Kenworth, Defendants, represented by Jeffrey
S. Fertl -- jpertil@hinshawlaw.com -- Hinshaw & Culbertson LLP.
PACIFIC COLLECTIONS: Faces "Gattoni" Suit in C.D. California
------------------------------------------------------------
A class action lawsuit has been filed against Pacific Collections
Credit Bureau. The case is styled as Brittani Gattoni,
individually and on behalf of all others similarly situated,
Plaintiff v. Pacific Collections Credit Bureau, Defendant, Case
No. 2:18-cv-05984 (C.D. Cal., July 10, 2018).
Pacific Collections Credit Bureau is a collection agency.[BN]
The Plaintiff appears PRO SE.
POLARITYTE INC: Aug. 27 Lead Plaintiff Bid Deadline
---------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of shareholders of the following companies.
If you suffered a loss you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
PolarityTE, Inc. (NASDAQ:COOL)
Lead Plaintiff Deadline: August 27, 2018
Class Period: March 31, 2017 and June 22, 2018
Get additional information: http://www.wongesq.com/pslra-
c/polarityte-inc?wire=3
Contact:
Vincent Wong, Esq.
39 East Broadway
Suite 304
New York, NY 10002
Telephone: 212.425.1140
Fax: 866.699.3880
E-Mail: vw@wongesq.com [GN]
POLARITYTE INC: Hagens Berman Files Securities Fraud Suit
---------------------------------------------------------
Hagens Berman Sobol Shapiro LLP alerts investors in PolarityTE,
Inc. (NASDAQ:COOL) to the August 27, 2018 Lead Plaintiff deadline
in the securities class action pending in the United States
District Court for the District of Utah. If you purchased or
otherwise acquired PolarityTE securities between March 31, 2017
and June 22, 2018 and suffered losses contact Hagens Berman Sobol
Shapiro LLP.
On June 25, 2018, an analyst accused PolarityTE and senior
management of fraud and stock manipulation. The analyst called
on the SEC to immediately halt trading in the Company shares
before insiders can further damage investors.
This news drove the price of PolarityTE shares down $10.59, or
about 27%, to close at $28.14 that day.
"We're focused on investors' losses and the analyst's accusations
which, if true, could reflect egregious violations of the
securities laws," said Hagens Berman partner Reed Kathrein.
Whistleblowers: Persons with non-public information regarding
PolarityTE should consider their options to help in the
investigation or take advantage of the SEC Whistleblower program.
Under the new program, whistleblowers who provide original
information may receive rewards totaling up to 30 percent of any
successful recovery made by the SEC.
Contact:
Reed Kathrein,Esq.
Telephone: 510-725-3000
Website: https://www.hbsslaw.com/cases/COOL
Email: COOL@hbsslaw.com
reed@hbsslaw.com [GN]
PROVIDENCE HEALTH: Affirmative Defenses in "Johnson" Partly OK'd
----------------------------------------------------------------
In the case, JENNY JOHNSON, individually and on behalf of a class
of persons similarly situated, and on behalf of the Providence
Health & Service 403(b) Value Plan, Plaintiff, v. PROVIDENCE
HEALTH & SERVICES, et al., Defendants, Case No. C17-1779-JCC
(W.D. Wash.), Judge John C. Coughenour of the U.S. District Court
for the Western District of Washington, Seattle, granted in part
and denied in part the Plaintiff's motion to strike affirmative
defenses.
Johnson brings the putative class action against Providence
Health & Services, the Providence Health & Human Resources
Committee, and other Providence employees currently unknown for
alleged breach of fiduciary duties pursuant to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
On March 22, 2018, the Court granted in part and denied in part
Providence's motion to dismiss the complaint. Providence
subsequently filed an answer, which asserts 21 affirmative
defenses.
Johnson filed the motion asking the Court to strike the following
affirmative defenses: (1) lack of standing; (2) bad faith; (3)
the safe harbor provision in ERISA Section 404(c); failure to
satisfy Federal Rule of Civil Procedure 23; and (5) a reservation
of rights to assert additional defenses. Providence asks the
Court to deny the motion because its assertion of the
aforementioned defenses is proper.
Judge Coughenour granted in part and denied in part the
Plaintiff's motion to strike. In accordance with his order, the
Judge struck Providence's affirmative defenses 1, 7, 21, and its
reservation of rights to assert additional defenses, without
leave to amend.
Providence's first affirmative defense states that the Plaintiff
lacks constitutional and statutory standing to bring the claims
alleged. Johnson argues that standing is not an affirmative
defense, but a threshold matter that the Court has already
addressed as part of Providence's motion to dismiss.
Judge Coughenour agrees that a lack of standing is not an
affirmative defense to a plaintiff's claims. Moreover, he has
already ruled that Johnson met her threshold burden to establish
standing. For those reasons, he strikes Providence's first
affirmative defense without leave to amend. However, he notes
that the issue of standing, like subject matter jurisdiction, can
be raised at any time, whether by the parties or by the Court.
Providence's seventh affirmative defense states that the claims
alleged in the Complaint were brought in bad faith and on the
basis of insufficient factual investigation by the Plaintiff and
her counsel, resulting in an unreasonable and vexatious
proceeding. Johnson argues that Providence's assertion of bad
faith is not an affirmative defense but simply another way of
stating Johnson cannot "meet her burden of proof." The Judge
agrees. On this basis, he strikes Providence's seventh
affirmative defense without leave to amend. This ruling does
not, however, preclude Providence from filing a future motion for
costs or attorney fees pursuant to ERISA Section 502(g)(1), 29
U.S.C. Section 1132(g), or 28 U.S.C. Section 1972, if it believes
after discovery and resolution on the merits that Johnson brought
her claims in bad faith.
Providence's twenty-first affirmative defense states that the
action may not be maintained as a class action because the
Plaintiff cannot satisfy the prerequisites of Federal Rule of
Civil Procedure 23. Johnson argues that this does not represent
an affirmative defense because even if the Court did not certify
her proposed class, her lawsuit would proceed on behalf of
herself and the retirement plan at issue. The Judge holds that
it is both incorrect and redundant for Providence to assert
Johnson's inability to meet the Rule 23 requirements as an
affirmative defense. Therefore, Johnson's motion to strike
Providence's twenty-first affirmative defense is granted without
leave to amend. This ruling does not preclude Providence from
challenging a future motion for class certification pursuant to
Rule 23.
At the end of its affirmative defenses, Providence states that
the Defendants reserve the right to assert, and give notice that
they intend to rely upon, any other defense that may become
available or appear during discovery proceedings or otherwise in
the case and hereby reserve the right to amend their Answer to
assert any such defense. Johnson asks the Court to strike this
"reservation of rights" because it is not itself an affirmative
defense.
The Judge holds that Federal Rule of Civil Procedure lays out the
requirements for amending a pleading, to include filing
additional affirmative defenses. Rule 15 does not require a
party to reserve the right to assert additional defenses.
Therefore, Johnson's motion to strike Providence's reservation of
rights to assert additional defenses is granted.
A full-text copy of the Court's May 18, 2018 Order is available
at https://is.gd/40Qx8t from Leagle.com.
Jenny M Johnson, individually, and on behalf of a class of
persons similarly situated, and on behalf of the Providence
Health & Service 403(b) Value Plan, Plaintiff, represented by
Gregory Y. Porter -- gporter@baileyglasser.com -- BAILEY &
GLASSER, pro hac vice, Julie Siebert-Johnson --
jsjohnson@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK LLP, pro hac
vice, Mark George Boyko -- mboyko@baileyglasser.com -- BAILEY &
GLASSER, pro hac vice, Mark K. Gyandoh -- mgyandoh@ktmc.com --
KESSLER TOPAZ MELTZER & CHECK LLP, pro hac vice, Mark P. Kindall
-- mkindall@ikrlaw.com -- IZARD, KINDALL & RAABE LLP, pro hac
vice, Clifford A. Cantor & Michael L. Murphy --
mmurphy@baileyglasser.com -- Bailey & Glasser, LLP.
Providence Health & Services, Providence Health & Services Human
Resources Committee & John and Jane Does #1-25, Defendants,
represented by Brian D. Boyle -- bboyle@omm.com -- O'MELVENY &
MYERS, pro hac vice, Meaghan VerGow -- mvergow@omm.com --
O'MELVENY & MYERS LLP, pro hac vice & Medora A. Marisseau --
mmarisseau@karrtuttle.com -- KARR TUTTLE CAMPBELL.
RECRO PHARMA: July 30 Lead Plaintiff Bid Deadline
-------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of shareholders of the following companies.
If you suffered a loss you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
Recro Pharma, Inc. (NASDAQ:REPH)
Lead Plaintiff Deadline: July 30, 2018
Class Period: July 31, 2017 and May 23, 2018
Get additional information: http://www.wongesq.com/pslra-c/recro-
pharma-inc-2?wire=3 [GN]
RESTORATION ROBOTICS: Pomerantz Files Securities Fraud Suit
-----------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been
filed against Restoration Robotics, Inc. ("Restoration Robotics"
or the "Company") (NASDAQ:HAIR) and certain of its officers. The
class action, filed in United States District Court, Northern
District of California, and docketed under 18-cv-03883, is on
behalf of a class consisting of all persons other than Defendants
who purchased or otherwise acquired Restoration Robotics stock
pursuant and/or traceable to the Company's Initial Public
Offering (the "IPO" or "Offering") that commenced on October 12,
2017, and closed on October 16, 2017, seeking to recover damages
caused by Defendants' violations of the federal securities laws
and to pursue remedies under Sections 11 and 15 of the Securities
Act of 1933 (the "Securities Act") against Restoration Robotics
and certain of its officers and directors.
If you are a shareholder who purchased Restoration Robotics
securities between October 12, 2017, and October 16, 2017, both
dates inclusive, you have until August 21, 2018, to ask the Court
to appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. Those who
inquire by e-mail are encouraged to include their mailing
address, telephone number, and the number of shares purchased.
Founded in 2002, Restoration Robotics is a medical technology
company that purports to be developing and commercializing a
robotic device (the "ARTAS System") designed to assist physicians
in performing many of the repetitive tasks that are a part of a
follicular unit extraction surgery, a type of hair restoration
procedure. On October 16, 2017, Restoration Robotics closed its
IPO, selling 3,897,910 shares at a public offering price of $7.00
per share, raising cash proceeds for the Company of approximately
$22.7 million after deducting underwriting discounts,
commissions, and expenses.
Contrary to the representations made in its Offering documents,
Restoration Robotics was not equipped with a sufficient
salesforce to effectively grow its business in the United States,
nor was the Offering sufficient to fund Restoration Robotics'
operations for a full year after the IPO. On May 11, 2018,
Restoration Robotics announced that it had obtained additional
financing in the form of a $20 million Loan and Security
Agreement with Solar Capital Ltd. and Bridge Bank. Then, On May
14, 2018, on an earnings call discussing the Company's financial
and operating results for the first quarter of 2018, Company
Chief Executive Officer Ryan Rhodes stated that "[i]n the near-
term, we expect some level of softness as we further optimize and
expand our sales teams as the new U.S sales reps take time to
become more productive."
Since the IPO, the Company's common stock has traded down at a
greater than 50% discount to the $7.00 IPO price.
Contact:
Robert S. Willoughby,Esq.
Pomerantz LLP
Telephone: 888-476-6529 ext. 9980
Website: www.pomerantzlaw.com.
Email: rswilloughby@pomlaw.com [GN]
REV GROUP: Levi & Korsinsky Files Class Action Lawsuit
------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of REV Group, Inc. ("REV Group") (NYSE:REVG) (1)
pursuant to the initial public offering on or around January 27,
2017 and/or (2) between January 27, 2017 and June 7, 2018. You
are hereby notified that a securities class action lawsuit has
been commenced in the United States District Court for the
Central District of California. To get more information go to:
http://www.zlk.com/pslra-d/rev-group-inc
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or
failed to disclose that: (1) the Company was experiencing cost
inflation across many of the commodities and services it bought;
(2) the Company was experiencing difficulty obtaining the chassis
necessary for production; (3) the Company's margins were being
negatively impacted by a lower sales of high margin products; (4)
the Company did not have "strong visibility into future net
sales" to "effectively plan" and manage its backlog of vehicles;
(5) the Company's manufacturing operations were not operating
efficiently or at a low cost to satisfy customer demand; and (6)
as a result of the foregoing, Defendants' statements about REV's
business, operations, and prospects, were materially false and/or
misleading and/or lacked a reasonable basis.
If you suffered a loss in REV Group you have until August 7, 2018
to request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve
as a lead plaintiff.
Contact:
Joseph E. Levi, Esq.
Levi & Korsinsky, LLP
30 Broad Street - 24th Floor
New York, NY 10004
Telephone: (212) 363-7500
Toll Free: (877) 363-5972
Fax: (212) 363-7171
Website: www.zlk.com
Email: jlevi@levikorsinsky.com [GN]
RIMOWA DISTRIBUTION: Faces "Duncan" Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Rimowa Distribution
Inc. The case is styled as Eugene Duncan, on behalf of himself
and all others similarly situated, Plaintiff v. Rimowa
Distribution Inc., Defendant, Case No. 1:18-cv-06098 (S.D. N.Y.,
July 5, 2018).
RIMOWA is one of Europe's leading manufacturers of premium travel
and carry-on luggage made of aluminum and polycarbonate.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
RMG SUNSET: Court Denies Remand of "Stern"
------------------------------------------
The United States District Court for the Southern District of
California denying Plaintiffs' Motion to Remand the case
captioned COTT STERN, Plaintiff, v. RMG SUNSET, INC., et al.,
Defendants, Case No. 17-CV-1646 JLS (NLS)(S.D. Cal.).
The Defendants operate fourteen restaurants throughout Southern
California, including the Baja Beach Cafe in Pacific Beach,
California. The Plaintiff visited the Cafe on February 24, 2016
and purchased several meals. The Defendants charged an allegedly
undisclosed service charge of 4.9% to customers, including the
Plaintiff, for any food and drink. The Plaintiff's original
complaint alleged four causes of action: violation of the
Consumers Legal Remedies Act (CLRA), violation of the False
Advertising Act violation of the Unfair Competition Law (UCL),
and unjust enrichment.
The Defendants removed the case to this Court. The Plaintiff now
seeks remand to state court.
The Plaintiff challenges Defendants removal on jurisdictional
grounds. First, the Plaintiff argues that the amount in
controversy is not in excess of $5,000,000, as required by the
Class Action Fairness Act (CAFA). Second, the Plaintiff contends
that his motion for class certification inadvertently extended
the class definition to all persons rather than California
citizens and he intends to modify his class definition at the
earliest opportunity.
The Plaintiff contests the amount in controversy and, therefore,
the Court must determine whether Defendants have met their burden
regarding this issue. Specifically, the Plaintiff argues that the
Defendants' calculations regarding the amount in controversy are
flawed. To that end, the Plaintiff states that his FAC only seeks
to disgorge the Defendants of the undisclosed service charge and
does not seek recovery for all food and drink sales made during
the class period. THe Plaintiff also seeks an injunction against
the Defendants -- a corrective campaign concerning the
undisclosed service charge. The Plaintiff argues the campaign
"could cost as little as a few hundred dollars."
According to the Plaintiff, the sum of these amounts are less
than $5,000,000 and Defendants offer no evidence establishing
$5,000,000 as the amount in controversy.
The Defendants calculate the amount in controversy in the
following manner:
First, they submit evidence that the total service charge
collected by the Defendants' fourteen restaurants during the
class period amounts to $2,102,754.23.
Second, the Defendants state that the Plaintiff explicitly seeks
punitive damages through his CLRA cause of action.
Third, the Defendants note that the Plaintiff requests attorney's
fees, which the Defendants argue should be considered in the
amount in controversy calculation when fees are awardable by
statute.
Fourth, the Plaintiff seeks declaratory and injunctive relief in
the form of an order requiring the Defendants to make certain
price disclosures and conduct a corrective marketing campaign.
In reply, the Plaintiff asserts two arguments against the
Defendants' amount in controversy calculation. First, the
Plaintiff contends that in the copycat case filed in Los Angeles,
to which the Defendants are a party, the Defendants did not
disclose the total value of the surcharges.
Second, the Plaintiff argues that the twenty-five percent
attorney's fees benchmark is not an appropriate measure because
the Plaintiff's class action is an injunctive relief class action
and the lodestar method is appropriate for injunctive class
actions.
Here, the Plaintiff seeks more than injunctive relief. He seeks
restitution and damages for him and the proposed class. If the
Plaintiff were to prevail, his efforts would create a common fund
based on the restitution and damages. Unlike purely injunctive
class actions where the attorney's fees are incalculable, the
Plaintiff's attorneys would receive a portion of the common fund.
Further, district courts in this circuit use the twenty-five
percent benchmark to evaluate attorney's fees to determine the
amount of controversy.
The Court finds the Plaintiff's argument unpersuasive and applies
the twenty-five percent benchmark to determine the amount in
controversy.
In sum, the Court finds that the Defendants have met their burden
to show that the Plaintiff's restitution, punitive damages, and
attorney's fees exceeds $5,000,000. Specifically, the Defendants
calculate restitution, punitive damages, and attorney's fees at
$5,256,885. This excludes the value of injunctive and declaratory
relief, which the Court notes but does not include because
neither party briefed a credible figure for the value of such
relief.
The Defendants argue that, in addition to restitution, the
Plaintiff also seeks additional damages based on the full price
of each class member's meal, as opposed to just the hidden
surcharge.
The Plaintiff replies that nowhere in the FAC does he allege that
he or any class member is entitled to the entire price of a meal.
The FAC contains language suggesting the Plaintiff seeks recovery
for more than the surcharge. For example, the Defendant alleges
that had the Plaintiff known about the undisclosed Fee, the
Plaintiff would not have eaten at the Defendants' restaurant. If
true, then the measure of damages to make the Plaintiff whole
would be the cost of the entire meal. The Plaintiff makes a
similar allegation regarding some members of the proposed class.
The Court must assume that the Plaintiff's claims are true and
that he will prevail on those claims at trial. Therefore, the
Court considers the full cost of the meals in the amount in
controversy.
The Plaintiff argues that his FAC contained a class definition
limited to only California citizens. Thus, when the Plaintiff
filed the FAC minimal diversity did not exist because the
Plaintiff is a California citizen, his proposed class was limited
to California citizens, and the Defendants are businesses
organized under the laws of California.
The Defendants cites Broadway Grill, Inc. v. Visa Inc., 856 F.3d
1274, 1276 (9th Cir. 2017), as standing for the proposition that
a class action plaintiff cannot amend the pleadings, ex post, to
eliminate minimal diversity. The Defendants argue that the
Plaintiff falls into the latter category and cannot change his
class definition to avoid federal jurisdiction.
The Court agrees with the Defendants. Where, as here, the initial
state pleading is not subject to federal jurisdiction, requires a
district court to determine citizenship as of the date of service
by plaintiffs of an amended pleading, motion, or other paper,
indicating the existence of Federal jurisdiction.
Thus, the Plaintiff's diversity of citizenship argument is
unavailing.
A full-text copy of the District Court's May 21, 2018 Order is
available at https://tinyurl.com/ybfe9lkp from Leagle.com.
Scott Stern, an individual; on behalf of himself and all others
similarly situated, Plaintiff, represented by Alex M. Tomasevic -
- atomasevic@nicholaslaw.org -- Nicholas and Tomasevic LLP, Craig
McKenzie Nicholas -- cnicholas@nicholaslaw.org -- Nicholas and
Tomasevic & Lacy N. Wells -- LacyWells26@gmail.com -- Nicholas &
Tomasevic, LLP.
RMG Sunset, Inc., a California corporation, PB Cantina, LLC, a
California limited liability party, Cabo Cantina L.A., LLC, a
California limited liability company, Boardwalk F&B, LLC & Cabo
Cantina, LLC, Defendants, represented by David Dworsky --
ddworsky@sheppardmullin.com -- Sheppard Mullin Richter & Hampton
LLP & Moe Keshavarzi -- mkeshavarzi@sheppardmullin.com --
Sheppard Mullin Richter and Hampton LLP.
Does 2 through 100, inclusive, Defendant, represented by Moe
Keshavarzi, Sheppard Mullin Richter and Hampton LLP.
RMS RECOVERY: Faces "Brewi" Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against RMS - Recovery
Management Services, Inc. The case is styled as Sean Brewi,
individually and on behalf of all those similarly situated,
Plaintiff v. RMS - Recovery Management Services, Inc., Defendant,
Case No. 2:18-cv-03966 (E.D. N.Y., July 10, 2018).
RMS - Recovery Management Services, Inc is a business management
consultant in Warrenville, Illinois.[BN]
The Plaintiff appears PRO SE.
ROCK HILL: Faces "Gillam" Suit in E.D. Virginia
-----------------------------------------------
A class action lawsuit has been filed against Rock Hill
Consulting, LLC. The case is styled as Christine Gillam,
Semetrica Shadwick, Steven Pike, Denis Geter and Elwood Bumbray,
on behalf of himself and all Individuals similarly situated,
Plaintiffs v. Dan Koetting, Rock Hill Consulting, LLC, Green Gate
Services, LLC and Clear Loan Solutions, LLC, Defendants, Case No.
3:18-cv-00473-REP (E.D. Va., July 10, 2018).
Rock Hill Consulting, LLC is a financing consulting services
company.[BN]
The Plaintiffs are represented by:
Casey Shannon Nash, Esq.
Kelly & Crandall PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Tel: (703) 640-3334
Fax: (703) 591-9285
Email: casey@kellyandcrandall.com
- and -
Andrew Joseph Guzzo, Esq.
Kelly & Crandall PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Tel: (703) 424-7576
Fax: (703) 591-0167
Email: aguzzo@kellyandcrandall.com
- and -
Kristi Cahoon Kelly, Esq.
Kelly & Crandall PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Tel: (703) 424-7570
Fax: (703) 591-9285
Email: kkelly@kellyandcrandall.com
ROSS & ASSOCIATES: Faces "Seeger" Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Ross & Associates.
The case is styled as Donna M. Seeger individually and on behalf
of all those similarly situated, Plaintiff v. Ross & Associates,
Defendant, Case No. 2:18-cv-03967 (E.D. N.Y., July 10, 2018).
Ross & Associates is regularly engaged, for profit, in the
collection of debts allegedly owed by consumers.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Sanders Law, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@sanderslawpllc.com
RUDY'S BARBERSHOP: Faces "Bishop" Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Rudy's Barbershop
Holdings, LLC. The case is styled as Cedric Bishop, on behalf of
himself and all others similarly situated, Plaintiff v. Rudy's
Barbershop Holdings, LLC, Defendant, Case No. 1:18-cv-06097 (S.D.
N.Y., July 5, 2018).
Rudy's Barbershop Holding, LLC operates barbershops in
Washington, Portland, Los Angeles, and New York. It offers
haircuts. The company also provides intern programs that cover
men's cuts, women's cuts, and color. In addition, it sells
shampoos, conditioners, body wash, gift certificates,
skateboards, sweatshirts, bracelets, necklaces, tote bags,
sunglasses, aftershave lotions, shaving oil, T-shirts, water
bottles, flasks, and deodorants online. The company is based in
Seattle, Washington.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
SAMSUNG ELECTRONICS: Bid to Enforce Wash. Machine Suit Deals OK'd
-----------------------------------------------------------------
The United States District Court for the District of New Jersey
granted Plaintiffs' Motion to Enforce Settlement in the cases
captioned COLLEEN KENNEDY and DAVID FOSTER, Plaintiffs, v.
SAMSUNG ELECS. A.M., INC., Defendant. MITCHELL ORENSTEIN,
Plaintiff, v. SAMSUNG ELECS. A.M., INC., Defendant, Civ. Nos.
2:14-4987, 2:15-4054 (DN.J.).
The Plaintiffs filed suit against Samsung Electronics America,
Inc. (SEA), alleging certain topload washing machine models
contained a drain pump design defect that could cause personal
injury and property damage. The Plaintiffs assert causes of
action under state consumer fraud law as well as federal and
state warranty and breach of contract claims.
SEA opposes, arguing first the absence of a written agreement
precludes enforcement because: (1) Third Circuit and New Jersey
law bars the Plaintiffs from enforcing an unmemorialized, alleged
oral settlement reached during the parties' mediation; (2) the
parties' post-mediation conduct shows no meeting of the minds on
material terms; and (3) the Plaintiffs' counsel cannot now accept
terms from an email. SEA also argues that even if the parties had
a valid, written settlement agreement, such agreement would be
unenforceable because (1) the Plaintiffs' counsel committed
anticipatory breach and, in any case, both parties mutually
abandoned the written agreement and (2) the Plaintiffs' counsel
cannot obtain Rule 23 class certification without injuring the
rights of absent Kennedy and Orenstein putative class members.
The record shows that an agreement on all essential terms was
reached by mediation on or about June 13, 2017, a fact
communicated to this Court directly by the Mediator, a former
federal judge. Counsel for both parties repeatedly communicated
to the Court in written letters and at formal hearings that
Kennedy and Orenstein were settled. Agreement on all essential
terms was also reflected in the initial written drafts exchanged
between the parties in the fall of 2017.
The parties' statements in April of 2018 denying the existence of
an agreement-in-principle do not change the fact that the parties
had indeed agreed on all essential terms in June of 2017. In
fact, New Jersey courts are leery of parties claiming that a
verbal settlement has become un-settled due to changes in
circumstance or intransigent positions on matters of
implementation. To allow such agreements to be subject to attack
because they were not placed upon the record places in
unnecessary jeopardy the very concept of settlement and the
process by which settlement of litigation is ordinarily achieved.
Hence, where a party to an agreement-in-principle suddenly
changes its mind and refuses to execute the written contract
without explanation, the court must enforce the agreement.
The Court will therefore enforce the settlement agreement reached
by SEA and Plaintiffs in June 2017, pursuant to the Order
accompanying this Opinion. The fact that no final, executed,
written document has yet emerged is immaterial. For, so long as
the parties agree upon the essential terms of a settlement,
leaving the details to be 'fleshed out' in a writing thereafter,
courts will enforce settlement agreements notwithstanding the
absence of a future writing.
A full-text copy of the District Court's May 21, 2018 Opinion is
available at https://tinyurl.com/y9fghuee from Leagle.com.
STEPHEN M. ORLOFSKY, Mediator, pro se.
MITCHELL ORENSTEIN, On behalf of himself and all other persons
similarly situated, Plaintiff, represented by BRUCE HELLER NAGEL,
NAGEL RICE, LLP & RANDEE M. MATLOFF, NAGEL RICE, LLP, 103
Eisenhower Parkway. Roseland, New Jersey 07068
Suzanne Moore, Rose Wagner & Jerry Wells, Intervenor Plaintiffs,
represented by JASON LOUIS LICHTMAN -- jlichtman@lchb.com --
LIEFF CABRASER HEIMANN & BERNSTEIN LLP.
SAMSUNG ELECTRONICS AMERICA, INC., Defendant, represented by
JOSEPH P. LASALA -- JLASALA@MDMC-LAW.COM -- MCELROY, DEUTSCH,
MULVANEY & CARPENTER, LLP, SEAN PATRICK NEAFSEY, SQUIRE PATTON
BOGGS (US) LLP & PAUL MYUNG HAN KIM, SQUIRE PATTON BOGGS (US)
LLP.
SAMSUNG ELECTRONICS: Loses Bid to Dismiss Defective S3 Suit
-----------------------------------------------------------
The United States District Court for the Western District of
Pennsylvania denied Defendant's Motion to Dismiss or Strike Class
Claims in the case captioned BRITTANY JONES, individually and on
behalf of those similarly situated, Plaintiff, v. SAMSUNG
ELECTRONICS AMERICA, INC., Defendant, Case No. 2:17-cv-00571-MAP
(W.D. Pa.).
This class action lawsuit has been brought by Plaintiff Brittany
Jones on behalf of herself and others in Pennsylvania, and in the
United States as a whole, who purchased a Samsung S3 cell phone.
The phone, according to the Plaintiff, was defective in that it
had a tendency to overheat and catch fire.
The Defendant seeks to dismiss the Plaintiff's complaint in its
entirety for failure to state a claim pursuant to Rule 12(b)(6)
or, in the alternative, to strike the class claims on the basis
that the Plaintiff cannot satisfy the requirements of Fed. R.
Civ. P. 23.
Moving to the Defendant's more specific arguments, the court has
no hesitation in concluding that, at this initial phase of
litigation, the complaint is sufficiently fibrous to survive a
motion to dismiss. As to Count I, the Defendant first argues that
the Plaintiff's claim for strict liability fails to identify
which of the three types of strict liability permitted under
Pennsylvania law she is invoking. Moreover, the Defendant
contends, Count I fails to specify what was defective about the
product. As to Count II, the Defendant asserts that the
Plaintiff's claim for negligence is too conclusory.
None of these arguments has traction. Pennsylvania law does not
require that the particular theory of strict liability be pled.
Moreover, under the malfunction theory of strict liability, a
plaintiff does not need to identify exactly what was defective
about a product. The complaint must allege only that, eliminating
abnormal use or other causes, a product malfunctioned and caused
injury.
The Defendant next argues that the Plaintiff's claim for
negligent misrepresentation (Count III) must be dismissed because
she failed to plead it with particularity, pursuant to Fed. R.
Civ. P. 9(b), and did not identify any specific statement that
constituted a misrepresentation. Again, these arguments fail. The
question whether a negligent misrepresentation claim must be pled
with particularity appears to be unsettled.
As to the last two counts (Counts IV and V), the Defendant
asserts that the Plaintiff's implied warranty of merchantability
and Magnuson-Moss claims fail because Pennsylvania law permits
manufacturers to limit warranties. The terms of the Defendant's
warranty expressly limit it to a period of one year and the
available remedy to repair or replacement of the product.
Finally, the Defendant argues that, at a minimum, the court
should strike the Plaintiff's class claims. The Defendant asserts
that product liability cases are not suited to class resolution
because they require inquiry into each individual class members'
particular injury or damage.
Once more, these arguments are unpersuasive, at least at this
stage of the litigation. As the Third Circuit has stated, it has
never required the presentation of identical or uniform issues or
claims as a prerequisite to certification of a class. Equally
importantly, the Plaintiff is entitled to take discovery and
submit a motion for class certification based on what is
disclosed. The court may take up the arguments now offered by
Defendant at that time; striking the class allegations would be
premature now.
A full-text copy of the District Court's May 21, 2018 Memorandum
and Order is available at https://tinyurl.com/yd3masjk from
Leagle.com.
BRITTANY JONES, individually and on behalf of those similarly
situated, Plaintiff, represented by D. Aaron Rihn, Robert Peirce
& Associates, P.C., Daniel C. Levin -- dlevin@lfsblaw.com --
Levin Sedran & Berman, pro hac vice & Charles E. Schaffer --
cschaffer@lfsblaw.com -- Levin Sedran & Berman.
SAMSUNG ELECTRONICS AMERICA, INC., Defendant, represented by
Arthur H. Stroyd, Jr. -- astroyd@dscslaw.com -- Del Sole
Cavanaugh Stroyd LLC, Robert J. Katerberg --
robert.katerberg@arnoldporter.com -- Arnold & Porter Kaye Scholer
LLP, pro hac vice, Daniel Jacobson --
daniel.jacobson@arnoldporter.com -- Arnold & Porter Kaye Scholer
LLP, pro hac vice, Elisabeth S. Theodore --
elisabeth.theodore@arnoldporter.com -- Arnold & Porter Kaye
Scholer LLP, pro hac vice & Kenneth L. Chernof --
kenneth.chernof@arnoldporter.com -- Arnold & Porter Kaye Scholer
LLP, pro hac vice.
SERVICE CORP: Court Denies Bid to Dismiss "Delacruz"
----------------------------------------------------
Judge Lawrence J. O'Neill of the U.S. District Court for the
Eastern District of California denied without prejudice SCI's
motion to dismiss the case, ROSALINDA DELACRUZ, on behalf of
herself and all others similarly situated, Plaintiff, v. SERVICE
CORPORATION INTERNATIONAL, Defendant, Case No. 1:18-cv-00154-LJO-
EPG (E.D. Cal.), subject to limited jurisdictional discovery.
On Jan. 28, 2018, Delacruz, filed the instant class action
complaint individually and on behalf of others similarly situated
against the Defendant, alleging that she was the victim of its
deceptive and misleading marketing practices. The Plaintiff
alleges that in July of 2014 she was induced to purchase an
expensive funeral package from the Lisle Funeral Home, which was
owned and operated by Defendant SCI, following the death of her
fiancÇ.
On March 8, 2018, SCI filed the instant motion to dismiss for
lack of personal jurisdiction, pursuant to Federal Rule of Civil
Procedure 12(b)(2). In support of its motion to dismiss, SCI
submits a declaration from Janet S. Key, Secretary of SCI Shared
Resources, LLC, and Corporate Secretary of SCI California Funeral
Services, Inc., both subsidiaries of Defendant SCI.
Key testifies that Lisle Funeral Home, the entity that the
Plaintiff contracted with, is owned and operated by SCI Cal, not
SCI. She further avers that SCI is a publicly-held Texas
corporation that has no employees. Rather, it is a holding
company that "conducts no business in the State of California.
Further, she states that SCI does not manage the business
activities of any funeral establishment, cemetery, or other local
facility in the State of California that is owned or operated by
any direct or indirect subsidiary, including SCI Cal and the
Lisle Funeral Home.
On April 18, 2018, the Plaintiff filed her opposition to the
motion. She asserts that SCI Cal is not truly a legally separate
entity from SCI, but rather that it operates as SCI's alter ego
or agent in the forum. Therefore, the Plaintiff posits, SCI
Cal's activity in the forum -- which unquestionably gives rise to
jurisdiction over SCI Cal -- can be imputed to SCI.
On April 25, 2018, the Defendant filed a reply in support of his
motion.
Accepting the Plaintiff's factual assertions as true, the
Plaintiff asserts that the corporations share officers,
employees, and corporate office space, that they market
themselves as an integrated company on their website, and that
SCI is involved in some of SCI Cal's business affairs, including
the branding of services and employment decisions. Taken as a
whole, Judge O'Neill finds that these factors are insufficient to
state a prima facie case that there is a "unity of interest and
ownership" between the entities.
Moreover, the Plaintiff offers no evidence to support her alter
ego theory. She does not explain why treating SCI and SCI Cal as
separate entities would result in injustice to this Plaintiff.
The Plaintiff fails to make a prima facie showing that SCI Cal is
SCI's alter ego, and therefore fails to establish at this stage
that the Court has personal jurisdiction over Defendant SCI.
In support of her agency theory, the Plaintiff sets forth the
same facts that the Court considered with respect to its alter
ego analysis. At most, the Judge finds that the facts set forth
by Plaintiff indicated that SCI held itself out as operating an
integrated network of funeral homes where it had some high level
control over employment policies and marketing and branding
policies. Therefore, even assuming that the agency theory of
specific personal jurisdiction is still valid, the Plaintiff
fails to establish a prima facie case for jurisdiction over SCI.
Finally, because there is only minimal evidence in this case to
support jurisdictional discovery, the Judge finds it appropriate
to allow only very limited discovery. The subject matter of the
discovery is limited to SCI's dealings with SCI Cal as it relates
to the allegedly deceptive marketing practices implicated in
allegations in the Complaint. Jurisdictional discovery is also
limited to the issue of personal jurisdiction based on the theory
of an alter ego relationship, or specific personal jurisdiction
based on an agency theory.
With respect to the agency theory, he says the Plaintiff should
bear in mind that the scope of the agency theory has been
significantly curtailed by recent Supreme Court and Ninth Circuit
case law; the Plaintiff must demonstrate at a minimum that the
parent actually controlled the activity of the subsidiary as it
relates to the alleged deceptive practices in this case to
demonstrate jurisdiction.
For the foregoing reasons, Judge O'Neill denied without prejudice
SCI's motion to dismiss, subject to limited jurisdictional
discovery. The discovery will be limited to: (i) 10 document
requests; (ii) 20 interrogatories; and (iii) one Rule 30(b)(6)
deposition not to last longer than 4 hours.
Said jurisdictional discovery will be completed within 60 days of
the entry of the Order. The Plaintiff will then have 20 days
after the close of jurisdictional discovery to supplement its
opposition. Within 14 days of the filing of the supplemental
opposition, the Defendant may file a supplemental reply. The
Judge referred the parties to Magistrate Judge Grosjean for
purposes of any discovery disputes, disputes the Court does not
expect to occur.
A full-text copy of the Court's May 18, 2018 Memorandum Decision
and Order is available at https://is.gd/mX2Vup from Leagle.com.
Rosalinda Delacruz, on behalf of herself and all others similarly
situated, Plaintiff, represented by Christopher J. Moreland --
oreland@halunenlaw.com -- Halunen Law, pro hac vice & Jeffrey
Douglas Kaliel -- jdkaliel@gmail.com -- Kaliel PLLC.
Service Corporation International, Defendant, represented by
Candace H. Shirley -- info@gurneelaw.com -- Gurnee Mason &
Forestiere LLP.
SERVICE EMPLOYEES: Faces "Lyon" Suit in Calif. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Service Employees
International Union. The case is styled as Jeff Lyon and Karen
Sandberg, on behalf of all others similarly situated, Plaintiffs
v. Service Employees International Union, Union of California
State Workers and Does 1-20, Defendants, Case No. 34-2018-
00236695-CU-BT-GDS (Cal. Super. Ct., July 10, 2018).
Service Employees International Union is a labor union
representing almost 1.9 million workers in over 100 occupations
in the United States and Canada.[BN]
The Plaintiffs are represented by:
Eric M George, Esq.
Browne George Ross LLP
2121 Avenue of the Stars, 28th Floor
Los Angeles, CA 90067
SIBANYE GOLD: Faces Class Action Lawsuit Following Fatalities
-------------------------------------------------------------
Tanisha Heiberg, writing for Reuters, reports that a U.S. law
firm has filed a class action lawsuit against South African miner
Sibanye-Stillwater on behalf of shareholders to recover losses
suffered after a spate of deaths at its mines triggered a sharp
fall in its share price.
Bernstein Liebhard LLP said in a statement the suit would deal
with "misleading statements" made by the precious metals
producer, which has had 21 fatalities on its operations so far in
2018, almost half of the total in South Africa's mining
industry.[GN]
SIBANYE GOLD: Bernstein Liebhard Files Class Action Lawsuit
-----------------------------------------------------------
Bernstein Liebhard LLP disclosed that a securities class action
lawsuit has been filed on behalf of those who purchased or
acquired the securities of Sibanye Gold Limited ("Sibanye" or the
"Company") (NYSE:SBGL) between April 7, 2017 and June 26, 2018,
both dates inclusive (the "Class Period"). The lawsuit seeks to
recover Sibanye shareholders' investment losses.
To join the Sibanye class action, and/or to discuss your legal
rights and options, please visit
https://www.bernlieb.com/cases/sibanye-gold-limited-sbgl-lawsuit-
class-action-fraud-stock-71/
According to the lawsuit, throughout the Class Period Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) Sibanye's culture places short-term profits over
safety; (2) consequently, almost half of South Africa's 2018
mining fatalities occurred in Sibanye mines; and (3) as a result,
Defendants' statements about Sibanye's business, operations, and
prospects were materially false and misleading and/or lacked a
reasonable basis at all relevant times. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
If you wish to serve as lead plaintiff, you must move the Court
no later than August 27, 2018. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. Your ability to share in any recovery
doesn't require that you serve as lead plaintiff. If you choose
to take no action, you may remain an absent class member.
Daniel Sadeh,Esq.
Bernstein Liebhard LLP
Website: http://www.bernlieb.com
Telephone: (877) 779-1414
Email: dsadeh@bernlieb.com [GN]
SONGS FAMILY: Faces "Her" Suit in W.D. New York
------------------------------------------------
A class action lawsuit has been filed against Song's Family Food
2 Inc. The case is styled as He Ran Her also known as: Helen Her
on her own behalf and on behalf of others similarly situated,
Plaintiff v. Song's Family Food 2 Inc doing business as: Song's
Family Food, Song's Family Food 3 Inc doing business as: Song's
Family Food, Song's Family Food 4 Inc doing business as: Song's
Family Food, Deuk Jong Song, Mi Ra Park, "John" Song and "Jane"
Song, Defendants, Case No. 1:18-cv-00755-EAW (W.D. N.Y., July 9,
2018).
Song's Family Food 2 Inc. offers Korean food in New York.[BN]
The Plaintiff appears PRO SE.
STEVEN COHEN: Faces "Shutter" Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Law Offices of
Steven Cohen LLC. The case is styled as James M. Shutter, on
behalf of himself and others similarly situated, Plaintiff v. Law
Offices of Steven Cohen LLC, Steven Cohen and Velocity
Investments, L.L.C., Defendants, Case No. 1:18-cv-06113-JMF (S.D.
N.Y., July 5, 2018).
Law Offices of Steven Cohen LLC is a Law firm in New York City,
New York.[BN]
The Plaintiff is represented by:
Evan Stone Rothfarb, Esq.
Schlanger Law Group LLP
9 East 40th Street, Suite 1300
New York, NY 10016
Tel: (212) 500-6114
Fax: (646) 612-7996
Email: erothfarb@consumerprotection.net
TJX COMPANIES: Faces "Fuentes" Suit in S.D. Florida
---------------------------------------------------
A class action lawsuit has been filed against TJX Companies, Inc.
The case is styled as Ryvania Fuentes, Gabrielle Ruiz, Olga
Fernandez-Duarte and Rachel Acosta, on behalf of themselves and
all others similarly situated, Plaintiffs v. TJX Companies, Inc.
doing business as: T.J. Maxx stores, Defendant, Case No. 1:18-cv-
22767-KMW (S.D. Fla., July 10, 2018).
The TJX Companies, Inc. is an American multinational off-price
department store corporation, headquartered in Framingham,
Massachusetts. It remained from the original Zayre Corp. that was
established in 1956.[BN]
The Plaintiffs are represented by:
Lindsey Caryn Grossman, Esq.
Criden & Love PA
7301 SW 57th Court, Suite 515
South Miami, FL 33143
Tel: (305) 357-9000
Fax: (305) 357-9050
Email: lgrossman@cridenlove.com
- and -
Michael Elliot Criden, Esq.
Criden & Love PA
7301 SW 57th Court, Suite 515
South Miami, FL 33143
Tel: (305) 357-9000
Fax: (305) 357-9050
Email: mcriden@cridenlove.com
TOYOTA MOTOR: Faces "Stockinger" Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Toyota Motor Sales,
U.S.A., Inc. The case is styled as Paul Stockinger, Elizabeth
Stockinger, Gailyn Kennedy, Basudeb Dey, Eliezer Casper and
Yvette Alley, on behalf of themselves and all others similarly
situated, Plaintiffs v. Toyota Motor Sales, U.S.A., Inc., A
California corporation, Defendant, Yvette Gayfield non-party,
Movant, Case No. 2:18-mc-00088-CBM-JC (C.D. Cal., July 5, 2018).
Toyota Motor Sales, U.S.A., Inc. is the North American Toyota
sales, marketing, and distribution subsidiary devoted to the U.S.
market. Founded in 1957 in California, TMS currently employs more
than 6,500 people.[BN]
The Movant is represented by:
Jennifer Lauren Joost, Esq.
Kessler Topaz Meltzer and Check LLP
One Sansome Street, Suite 1850
San Francisco, CA 94104
Tel: (415) 400-3000
Fax: (415) 400-3001
Email: jjoost@ktmc.com
- and -
Natalie Lesser, Esq.
Kessler Topaz Meltzer and Check LLP
280 King of Prussia Road
Randor, PA 19087
Tel: (610) 667-7706
Fax: (610) 667-7056
Email: nlesser@ktmc.com
- and -
Peter A Muhic, Esq.
Kessler Topaz Meltzer and Check LLP
280 King of Prussia Road
Radnor, PA 19087
Tel: (610) 667-7706
Fax: (610) 667-7056
Email: pmuhic@ktmc.com
- and -
Tyler S Graden, Esq.
Kessler Topaz Meltzer and Check LLP
280 King of Prussia Road
Radnor, PA 19087
Tel: (610) 667-7706
Fax: (610) 667-7056
Email: tgraden@ktmc.com
The Defendant is represented by:
Esther Kyungmin Ro, Esq.
Morgan Lewis and Bockius LLP
300 South Grand Avenue 22nd Floor
Los Angeles, CA 90071-3132
Tel: (213) 612-2500
Fax: (213) 612-2501
Email: esther.ro@morganlewis.com
TSG AUTO: Faces "Grays" Suit in Colorado
----------------------------------------
A class action lawsuit has been filed against TSG Auto. The case
is styled as Tiffany Grays, On behalf of self & all persons
similarly situated, Plaintiff v. TSG Auto, T.S.G. Inc, TSG
Auto.com and Tim Greufe, Defendants, Case No. 1:18-cv-01762 (D.
Col., July 10, 2018).
TSG Auto is a used car dealer in Parker, Colorado.[BN]
The Plaintiff appears PRO SE.
TSC ACCOUNTS: Faces "Gattoni" Suit in C.D. California
-----------------------------------------------------
A class action lawsuit has been filed against TSC Accounts
Receivable Solutions. The case is styled as Brittani Gattoni,
individually and on behalf of all others similarly situated,
Plaintiff v. TSC Accounts Receivable Solutions, Defendant, Case
No. 2:18-cv-05985 (C.D. Cal., July 10, 2018).
TSC Accounts Receivable Solutions offers collection and accounts
receivable management services. The company provides bad debt
collection, accounts receivable clean-up, pre-collection,
accounts receivable consulting, and medical billing services. It
caters to healthcare, child care, dentistry, education, health
and fitness, property management, retail, and telecommunications
sectors. TSC Accounts Receivable Solutions was founded in 1992
and is based in Carlsbad, California.[BN]
The Plaintiff is represented by:
Jonathan Aaron Stieglitz, Esq.
Law Offices of Jonathan A Stieglitz
11845 West Olympic Boulevard Suite 800
Los Angeles, CA 90064
Tel: (323) 979-2063
Fax: (323) 488-6748
Email: jonathan.a.stieglitz@gmail.com
UNITED STATES: Seneca County May Join Tax Payment Suit
------------------------------------------------------
David L. Shaw, writing for Finger Lakes Times, reports that the
federal government may have underpaid Seneca County in its
payments in lieu of property taxes for federal lands within the
county.
In the event that is true, the Ways & Means Committee of the
county Board of Supervisors voted on June 26 to authorize joining
a class action lawsuit initiated in a federal district court by
Kane County, Utah.
According to County Attorney Frank Fisher, Esq. --
ffisher@co.seneca.ny.us -- it appears a federal court has
determined that underpayments on federal PILOT programs in Kane
County and other local governments may have occurred. That could
include the part of the Finger Lakes National Forest in the towns
of Lodi and Covert and part of the Montezuma National Wildlife
Refuge in Tyre.
"There is no downside to joining this lawsuit. There is no cost
to join, and we could get more money if the court determines the
county was underpaid under PILOT agreements for federal lands in
the county," Fisher said. "It wouldn't be much. The county has
received $8,000 this year from the federal government."
Tyre Supervisor Ron McGreevy said the U.S. Fish & Wildlife
Service has given the town $7,471 in lieu of property taxes on
the part of the Montezuma refuge in Tyre. He said that is less
than was provided several years ago.
The motion now goes to the full board for a final vote July
10.[GN]
UNITED STATES: Faces "Morecraft" Suit in Court of Federal Claims
----------------------------------------------------------------
A class action lawsuit has been filed against the USA on July 6,
2018, at the Court of Federal Claims. The case is styled as
Brenda Morecraft and Kristin Melendez, on behalf of themselves
and all others similarly situated, Plaintiffs v. USA, Defendant,
Case No. 1:18-cv-00967-LAS.
The U.S. is a country of 50 states covering a vast swath of North
America, with Alaska in the northwest and Hawaii extending the
nation's presence into the Pacific Ocean. Major Atlantic Coast
cities are New York, a global finance and culture center, and
capital Washington, DC. Midwestern metropolis Chicago is known
for influential architecture and on the west coast, Los Angeles'
Hollywood is famed for filmmaking.[BN]
The Plaintiff is represented by:
Christopher Joseph Trombetta, Esq.
Office of Christopher J. Trombetta
121 North Main Street, Suite 12
Mansfield, MA 02048
Tel: (508) 339-5900
Email: chris@trombettalaw.com
UNITED STATES: Class Action Suit Targets Family Separations
-----------------------------------------------------------
Alice Ollstein, writing for Talking Points Memo, reports that a
group of legal and immigrant rights advocates filed a new class
action suit on June 29 against the Trump administration,
challenging an array of policies related to the treatment of
unaccompanied minor immigrants.
The lawsuit, filed in federal court in Los Angeles, seeks to end
the administration's policy of indefinitely detaining immigrant
children, subjecting the children to forced medication without
their parents' consent, denying them of access to attorneys, and
the denying or delay their release to family members or vetted
sponsors.
While many lawsuits have been filed challenging the Trump
administration's recent treatment of immigrant families, this new
class action is the first to focus solely on the rights of the
minor children who either came to the U.S. unaccompanied or were
separated from their relatives upon arrival. In seeking class
action status for the lawsuit, the plaintiffs alleged that
"hundreds" of "predominantly indigent, non-English-speaking
children . . . are being denied basic fairness" in the
immigration system.
"Abusing children is not among the legitimate tools the
government has at its disposal to regulate the border," Carlos
Holgu°n, Esq. -- crholguin@centerforhumanrights.org -- an
attorney with the Center for Human Rights and Constitutional Law,
told reporters on a conference call. "They're using human misery
as a means to control immigration."
The lawsuit is directed at the Department of Health and Human
Services' Office of Refugee Resettlement, which is run by a Trump
appointee with no experience with refugees. The alleged abuses
stretch back to as far as January of 2017, a few weeks before
President Trump took office, and continue today. The plaintiffs
say the administration is causing "grave harm to children" by
violating their constitutional right to due process and their
rights under the Trafficking Victims Protection Act. They are
also accusing them of violating the decades-0ld Flores settlement
covering the rights of immigrant children in U.S. custody, which
the government is currently seeking to abolish in a different
case before the same District court.
Among the violations alleged in the new lawsuit, the groups
representing the migrant and asylum-seeking children say they are
being placed in facilities where they are given psychotropic
drugs without parental consent.
"In light of the grave harm to children that we know is posed by
psychotropic meds, ORR needs procedures in place to make sure
they aren't being used as chemical straight-jackets to control
behavior, which is what we have seen," said Leecia Welch, Esq. --
lwelch@youthlaw.org -- a senior attorney with National Center for
Youth Law, which is representing children in this case. "These
are incredibly powerful drugs that impact the central nervous
system, putting children at risk of increasingly intense
psychotic episodes and suicidal ideation. These kids are at risk
of serious long-term effects, and protections are not currently
in place system-wide to protect them from this abuse."
Welch told reporters on the conference call June 29 that the
violations of rights alleged in the lawsuit had led to others,
including the children's legal right to an education while in
custody.
"We know that children at the on-site school at Shiloh have been
involuntarily sedated and left at a desk in the middle of the
classroom to fall asleep for four hours," she said. "You can only
imagine how that impacts the education of the children
surrounding them."[GN]
UNITED STATES: Lincoln Cty. Might Join PILT Class Action Lawsuit
----------------------------------------------------------------
The Western News reports that Lincoln County might join a class
action lawsuit that seeks to recover additional payments in lieu
of taxes (PILT) for fiscal years 2015, 2016 and 2017 -- years in
which a federal claims court has determined insufficient funds
were paid.
The county has until Sept. 14 to join the lawsuit. Participation
would cost the county nothing out-of-pocket, but legal fees might
be deducted from any proceeds awarded to the county, according to
a notice from the U.S. Court of Federal Claims in Washington,
D.C.
"If it doesn't cost us a dime, we might as well throw our hat in
the ring, especially being one of the largest PILT recipients,"
County Administrator Darren Coldwell told the County Commission
on June 27 during an administrative discussion.
The item will be placed on a future commission agenda for the
commissioners to vote on, Coldwell indicated.
Payments in lieu of taxes, authorized in 1976, are payments the
federal government makes to local governments to help offset
losses in property taxes due to non-taxable Federal lands within
their boundaries.
Lincoln County has received $7,063,349 in PILT funds since June
2009, according to figures Lincoln County Treasurer Nancy Higgins
provided on June 28. The money can be used for matching grants,
emergency needs, unforeseen legal costs and other items, Coldwell
previously told The Western News.
The class action lawsuit arose from legal action Kane County,
Utah brought against the United States. The U.S. Court of Federal
Claims subsequently "allowed, or 'certified,' a Class Action
Lawsuit against the United States to recover amounts which the
Court has determined that the (federal) government was required
to pay units of local government . . . but did not pay in full in
fiscal years 2015, 2016 and 2017," according to the court notice.
The notice states that the federal government denied needing to
pay any additional amount for those three fiscal years, but that
the court ruled the federal government was "obligated" to pay
"the full amounts calculated by a formula set forth" in the law
that authorized the payments.
While the court has not yet determined how much the federal
government underpaid local governments during those three fiscal
years, the notice states that legal counsel for both the
plaintiffs and the federal government so far "have agreed on the
amount of the underpayment in fiscal years 2015 and 2016."
The notice does not explain why those three years were underpaid.
According to the court notice, Alan Saltman, Esq. --
aisaltman@smithcurrie.com -- and the firm of Smith, Currie and
Hancock were determined by the court to be "qualified" to
represent all class members in the legal proceedings, though any
class member would be allowed to hire its own representation at
its own direct expense.
No trial date has yet been set, the court notice states. If a
trial on damages were to be held, class members would not have to
attend. Any court decision would be open to appeal.
By opting into the class action suit, Lincoln County would give
up its right to sue the federal government on its own for the
same claims made in the lawsuit.
The county need take no action if the commission chooses not to
join the lawsuit.[GN]
UNITED STATES: Muskogee County Joins PILT Class-Action Lawsuit
--------------------------------------------------------------
Cathy Spaulding, writing for Muskogee Phoenix, reports that
Muskogee County Board of Commissioners voted on June 29 to join a
class-action lawsuit seeking to recover money they say the
federal government should have paid between 2015 and 2017, said
District 1 Commissioner Ken Doke.
"The purpose of the lawsuit is to go back and recoup all that
additional money . . . . We're hoping it should bring in sort of
a lump sum, a big chunk of money back into Muskogee County," he
said.
Doke said the county will seek money the government should have
been paying in lieu of county property taxes. He said the federal
government pays local governments a "payment in lieu of taxes,"
or PILT, to compensate them for lost property tax collections.
He used Camp Gruber as an example.
"They bought hundreds of thousands of acres over there, so there
is no home construction or anything. So, it's just a dead zone as
it relates to property taxes," Doke said.
He said changes in the PILT program around 2008 resulted in an
underpayment of "what was fair and equitable" to counties and
other local governments between 2015 and 2017
He said a county in Utah, Kane County, successfully sued the
federal government to recover underpaid taxes for federal lands
within that county.
Doke said he could not estimate how much money Muskogee County
could recover if it wins the lawsuit.
"We have quite a bit of federally owned property here, so
eventually it could be pretty significant, a significant payoff
for us," he said. "We'll do an assessment as part of the lawsuit
to see what that property is.
He said that, while Camp Gruber is the "best example" of federal
property, other properties could include federally owned wildlife
areas.
"We're just trying to get our mind around what this is," he
said.[GN]
UNUM GROUP: Aug. 13 Lead Plaintiff Bid Deadline
-----------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of shareholders of the following companies.
If you suffered a loss you have until the lead plaintiff deadline
to request that the court appoint you as lead plaintiff.
Unum Group (NYSE:UNM)
Lead Plaintiff Deadline: August 13, 2018
Class Period: January 31, 2018 and May 2, 2018
Get additional information: http://www.wongesq.com/pslra-c/unum-
group?wire=3 [GN]
VITA-MIX CORP: Faces "Kiler" Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Vita-Mix
Corporation. The case is styled as Marion Kiler, individually and
as the representative of a class of similarly situated persons,
Plaintiff v. Vita-Mix Corporation, Defendant, Case No. 1:18-cv-
03950 (E.D. N.Y., July 10, 2018).
Vitamix, privately owned and operated by the Barnard family since
1921, manufactures high-performance blenders for consumers and
for the restaurant and hospitality industry. Vitamix has been
based in Olmsted Township, Ohio since 1948.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11217
Tel: (917) 373-9128
Fax: (718) 504-7555
Email: shakedlawgroup@gmail.com
WAH FUNG USA: Faces "Su" Suit in S.D. New York
----------------------------------------------
A class action lawsuit has been filed against Wah Fung USA Inc.
The case is styled as Ganxiong Su, on his own behalf and on
behalf of others similarly situated, Plaintiff v. Wah Fung USA
Inc, Wah Fung New York, Inc, Yue Fung USA Enterprise, Inc, Wing
Fat Corporation, Yuk Chiu Chan and David Chan, Defendants, Case
No. 1:18-cv-06231 (S.D. N.Y., July 10, 2018).
Wah Fung USA Inc is a fast food located at 79-0 Queens Blvd,
Queens, NY 11373, USA.[BN]
The Plaintiff appears PRO SE.
WANDERLUST FESTIVAL: Faces "Bishop" Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Wanderlust
Festival, LLC. The case is styled as Cedric Bishop, on behalf of
himself and all others similarly situated, Plaintiff v.
Wanderlust Festival, LLC, Defendant, Case No. 1:18-cv-06214 (S.D.
N.Y., July 9, 2018).
The Wanderlust Festival is a summer festival first held in Squaw
Valley in July 2009. The event, announced in May 2009, featured a
musical lineup featuring Michael Franti, Spoon, Broken Social
Scene, and Girl Talk, and featured a yogi lineup including John
Friend, Shiva Rea, Schuyler Grant, Elena Brower, Christy Nones
and Annie Carpenter. Wanderlust has grown from the first festival
in Squaw Valley to 7 festivals in the United States and Canada in
2015.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
WANDERLUST FESTIVAL: Faces "Duncan" Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Wanderlust
Festival, LLC. The case is styled as Eugene Duncan, on behalf of
himself and all others similarly situated, Plaintiff v.
Wanderlust Festival, LLC, Defendant, Case No. 1:18-cv-06213 (S.D.
N.Y., July 9, 2018).
The Wanderlust Festival is a summer festival first held in Squaw
Valley in July 2009. The event, announced in May 2009, featured a
musical lineup featuring Michael Franti, Spoon, Broken Social
Scene, and Girl Talk, and featured a yogi lineup including John
Friend, Shiva Rea, Schuyler Grant, Elena Brower, Christy Nones
and Annie Carpenter. Wanderlust has grown from the first festival
in Squaw Valley to 7 festivals in the United States and Canada in
2015.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
WOODBOLT DISTRIBUTION: Faces "Lopez" Suit in C.D. California
------------------------------------------------------------
A class action lawsuit has been filed against Woodbolt
Distribution, LLC. The case is styled as Gustavo Lopez,
individually, and on behalf of other members of the general
public similarly situated, Plaintiff v. Woodbolt Distribution,
LLC a Delaware limited liability company, Defendant, Case No.
2:18-cv-05926 (C.D. Cal., July 6, 2018).
Woodbolt Distribution, LLC, doing business as Nutrabolt, develops
and markets sports nutrition supplement products. It provides
products under Cellucor, Neon Sport, Fitjoy, Scivation, C4, and
Royal Sport brands. The company was founded in 2002 and is based
in Bryan, Texas. It has additional offices in Austin, Texas; and
Mississauga, Canada.[BN]
The Plaintiff appears PRO SE.
Z BAR: Faces "Ramos" Suit in E.D. New York
------------------------------------------
A class action lawsuit has been filed against Z Bar Inc. The case
is styled as Luiz Rafael Alatorre Ramos, individually and on
behalf of others similarly situated, Plaintiff v. Z Bar Inc.
doing business as: Z Bar, Khan Rizwan, Ramon Pantoja, Wiz Doe and
Jane Doe also known as: Wizs sister, Defendants, Case No. 1:18-
cv-03867 (E.D. N.Y., July 5, 2018).
Z Bar is a new lounge inspired by the world's cultural and
culinary riches. Featuring iconic views of the city, the rooftop
terrace is an ideal perch to experience Chicago's wonders. Z Bar
embodies the jet-setter's search for surprise, adventure and,
yes, a taste of luxury.[BN]
The Plaintiff appears PRO SE.
* Washington Procurement Protocol May be Preempted by FAA
---------------------------------------------------------
An Executive Order issued by Washington Governor Jay Inslee on
June 12, 2018 seeks to rebuff the U.S. Supreme Court's ruling in
Epic Systems LLC v. Lewis, 138 S. Ct. 1612 (May 21, 2018), by
implementing new state procurement procedures that overtly
discriminate against companies whose employment agreements
contain arbitration provisions with class action waivers.
However, the Executive Order may be preempted by federal law.
Epic Systems held that class action waivers in employment
arbitration agreements are valid and enforceable under the
Federal Arbitration Act (FAA) and are not prohibited by the
National Labor Relations Act. Nevertheless, the Executive Order
requires Washington State executive and cabinet agencies to "seek
to contract with qualified entities and business owners that can
demonstrate or will certify that their employees are not required
to sign, as a condition of employment, mandatory individual
arbitration clauses and class or collective action waivers."
The preamble to the Executive Order makes clear that it is
specifically targeted to avoid the application of Epic Systems.
It states that the "decision [Epic Systems] will inevitably
result in an increased difficulty in holding employers
accountable for widespread practices that harm workers," that
"collective power is a real force for change, as evidenced by the
'Me Too' movement" and, therefore, "it is incumbent on state
agencies to make every effort to encourage and support employers
who demonstrate that they value workers' rights to collectively
address workplace disputes." A statement by the Governor's
Office confirmed that the Executive Order is predicated on public
policy considerations that are antithetical to Epic Systems:
In our state, we value companies that respect workers' rights . .
. There is power in numbers. There is power in transparency.
And there is power in our pocketbook to influence companies to do
the right thing. We can't change the Supreme Court's ruling but
we can change how we do business.
The Executive Order states that it is effective "[t]o the extent
permissible under state and federal law." Because the FAA
preempts inconsistent state laws, the Executive Order may be
preempted by federal law. The FAA requires rigorous enforcement
of arbitration agreements "'according to their terms, including
terms that specify with whom the parties choose to arbitrate
their disputes and the rules under which that arbitration will be
conducted.'" Epic Systems, 138 S. Ct. at 1621, quoting American
Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 233
(2013). As the Supreme Court held in AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 344 (2011):
States [cannot take steps that] . . . . conflict with the FAA or
frustrate its purpose to ensure that private arbitration
agreements are enforced according to their terms . . . . States
cannot require a procedure that is inconsistent with the FAA,
even if it is desirable for unrelated reasons . . . .
The Executive Order is arguably preempted by federal law because
it harnesses the economic power of Washington State to
discriminate against companies that desire to enter into
employment contracts containing arbitration agreements with class
action waivers that the Epic Systems Court expressly declared to
be lawful and enforceable in an opinion that is the law of the
land. Under substantive federal policy embodied in the FAA,
states are forbidden from discriminating against arbitration or
singling out arbitration agreements for special treatment. See,
e.g.,American Express Co. v. Italian Colors Restaurant,517 U.S.
681, 687 (1996). That could be the Achilles' heel of the
Executive Order, since it blatantly discriminates against certain
companies based solely on the fact that their employment
contracts contain arbitration agreements specifying "with whom
the parties choose to arbitrate their disputes and the rules
under which that arbitration will be conducted." In any event,
we consider the Executive Order to be misguided since arbitration
is more beneficial to individual employees than class action
litigation.
*********
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